Nevin G. Sweger, Jr. v. Joseph W. Chesney

PRECEDENTIAL
Filed June 27, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-3174
NEVIN G. SWEGER, JR.,
Appellant
v.
JOSEPH W. CHESNEY; DISTRICT ATTORNEY OF THE
COUNTY OF CUMBERLAND; ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court Judge: The Honorable William J. Nealon
(D.C. Civil No. 3:98-CV-1527)
Argued on November 26, 2001
Before: ROTH, FUENTES, and WEIS, Circuit Judge s
(Opinion Filed: June 27, 2002)
Peter Goldberger, Esq. [ARGUED]
Law Office of Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003-2276
Counsel for Appellant
Jaime M. Keating, Esq. [ARGUED]
Chief Deputy District Attorney
Cumberland County Courthouse
One Courthouse Square
Carlisle, Pennsylvania 17013
Counsel for Appellees
OPINION OF THE COURT
FUENTES, Circuit Judge:
Petitioner Nevin G. Sweger, Jr. appeals from the District
Court’s denial of his petition for a writ of habeas corpus. A
Pennsylvania jury convicted Sweger in May 1984 of the
first-degree murder of his wife, and the state court
sentenced him to life imprisonment. Sweger then embarked
on a lengthy and tortuous post-conviction review process,
which included a direct appeal, two post-conviction relief

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petitions filed in state court, and a federal habeas
application. In his federal petition, Sweger asserts
numerous claims of error relating to his trial and direct
appeal.
The District Court dismissed all of Sweger’s claims. The
court concluded that some of his claims were time-barred
by the one-year period of limitation under the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA"), 28
U.S.C. S 2244(d)(1), while one of his claims had been
procedurally defaulted. Sweger’s primary contention on
appeal is that the District Court erred in applying the one-
year period on an issue-by-issue basis. He argues that the
limitations period for his entire habeas petition should have
been tolled under 28 U.S.C. S 2244(d)(2) during the time
that his second post-conviction relief petition attacking his
conviction was pending in state court, even though some of
his federal habeas issues were already fully exhausted
before the filing of the second state petition.
We agree. We hold that under S 2244(d)(2), the AEDPA
limitations period for a habeas corpus petition, including all
issues presented in that petition, is tolled during the
pendency of a state post-conviction proceeding which
2
challenges the same judgment as does the habeas petition.
The District Court, however, did not err in its dismissal of
one of Sweger’s claims on the basis of procedural default.
We therefore affirm in part and reverse in part, and remand
this case to the District Court for it to consider the merits
of the claims improperly dismissed as time-barred.
I.
A. State Court Proceedings
Sweger fatally shot his estranged wife four times with a
shotgun, then shot himself in the chin but survived. At his
state court trial for murder, Sweger argued that he was
under the influence of drugs and alcohol on the day of the
shooting, and that he should therefore not be eligible for a
first-degree murder conviction, but only for a third-degree
conviction. In May 1984, a jury in the Court of Common
Pleas for Cumberland County, Pennsylvania convicted
Sweger of first-degree murder. The court sentenced him to
life imprisonment without parole. After his post-trial
motions were denied, Sweger filed a direct appeal to the
Pennsylvania Superior Court raising five issues, including
challenges to the jury instructions on homicide and on the
intoxication defense. In February 1986, the Superior Court
denied Sweger’s appeal. The Pennsylvania Supreme Court
denied Sweger’s petition for allowance of appeal in January
1987.
Over six years later, in 1993, Sweger filed a pro se
petition for relief under the Pennsylvania Post Conviction
Relief Act ("PCRA"), 42 Pa. Cons. Stat. SS 9541, et seq.

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Counsel was appointed and Sweger raised just one issue:
ineffective assistance of counsel based on trial and
appellate counsels’ alleged failure to raise and preserve the
issue of the trial court’s refusal to allow individual voir dire
on juror prejudices regarding alcohol. After an evidentiary
hearing in March 1994, the trial court denied the petition.
The Pennsylvania Superior Court affirmed on October 13,
1994, and the Pennsylvania Supreme Court denied
Sweger’s petition for allowance of appeal on March 20,
1995.
3
On February 1, 1996, Sweger filed a second pro se PCRA
petition, raising seven claims of ineffective assistance of
counsel.1 The court appointed counsel for the seventh issue
only, and informed Sweger that it intended to dismiss the
other six issues as meritless but would permit Sweger to
proceed pro se and file his own brief on the other six
issues. After a hearing on the one counseled issue and
review of Sweger’s pro se brief on the other six, the court
denied the second PCRA petition on July 12, 1996. The
court ordered counsel to file an appeal only with respect to
the seventh issue, and noted that Sweger could appeal the
other issues pro se.
In February 1997, almost three months after the
procedural deadline for filing, Sweger filed an application
with the Superior Court to file a pro se brief nunc pro tunc
(retroactive to a timely filing) on the other six issues.2 The
Superior Court rejected Sweger’s pro se application as time-
barred, and also affirmed the trial court on the seventh
_________________________________________________________________
1. These seven claims included:
1. Whether trial counsel was ineffective for failing to argue Sweger’s
Miranda rights regarding an incriminating statement that was not
suppressed.
2. Whether trial counsel was ineffective for failing to object to false
testimony at a suppression hearing and at trial.
3. Whether trial counsel was ineffective for failing to investigate
fully and prepare for trial.
4. Whether trial counsel was ineffective for failing to move for the
recusal of the trial judge.
5. Whether the first PCRA counsel was ineffective for failing to
move for recusal of the PCRA judge.
6. Whether trial counsel was ineffective for failing to request a jury
charge on good character evidence.
7. Whether trial counsel was ineffective for failing to allow Sweger
to testify.
App. at 20-21.

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2. Sweger alleges that he then retained private counsel for the other six
claims, but that after obtaining an extension, counsel did not file a brief
on those claims.
4
issue, which had been timely briefed by court-appointed
counsel. Sweger filed a petition for allowance of appeal on
the other six issues with the Pennsylvania Supreme Court.
Soon after, court-appointed counsel also filed a petition for
allowance of appeal on the seventh issue. The Prothonotary
of the Pennsylvania Supreme Court informed Sweger that
two petitions for allowance of appeal had been filed and
that Pennsylvania appellate rules prohibited dual
representation, so his pro se petition for allowance of
appeal was discontinued and closed. After Sweger wrote a
letter to the Prothonotary requesting reconsideration of his
pro se filing, the Prothonotary told Sweger that he could file
an application requesting leave to file a petition for
allowance of appeal. Sweger so applied, and on July 29,
1997, the Pennsylvania Supreme Court denied both
Sweger’s application and his counsel’s petition for leave on
the seventh PCRA claim.
B. Federal Habeas Corpus Proceedings
Sweger filed this federal petition for writ of habeas corpus
pro se in the Eastern District of Pennsylvania on April 1,
1998. On September 15, 1998, the petition was transferred
to the Middle District of Pennsylvania, where Sweger is
currently incarcerated at SCI-Frackville. Sweger’s habeas
petition raised five claims:
A. Ineffective assistance of trial counsel based on
counsel’s denial of Sweger’s right to testify.
B. Ineffective assistance of trial counsel in failing to
preserve the issue of denial of individual voir dire.
C. Disposition by the Pennsylvania Superior Court on
direct appeal of challenges to jury instructions in a
manner contrary to U.S. Supreme Court precedent.
D. Disposition by the Pennsylvania Superior Court on
direct appeal of challenges to the admission of
evidence in a manner contrary to Pennsylvania
Supreme Court precedent.
E. Ineffective assistance of trial counsel as to three
issues: 1) failure to argue Sweger’s Miranda rights;
5
2) failure to object to false testimony; and 3) failure
to investigate fully and prepare for trial.3
Issue A was raised by court-appointed counsel in

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Sweger’s second PCRA petition and exhausted when the
Pennsylvania Supreme Court denied review on July 29,
1997. Issue B was raised in Sweger’s first PCRA petition
and exhausted when the Pennsylvania Supreme Court
denied the petition for appeal on March 20, 1995. Issues C
and D, raised on direct appeal, were exhausted when the
Pennsylvania Supreme Court denied Sweger’s petition for
appeal on January 9, 1987. Issue E was raised as part of
Sweger’s pro se claims in the second PCRA petition, and
exhausted also on July 29, 1997.
On October 7, 1998, a Magistrate Judge issued a Report
and Recommendation to the District Court, concluding that
the petition should be dismissed under Rose v. Lundy, 455
U.S. 509, 518-21 (1982), because it contained both
exhausted claims (Issues A-D) and what the Magistrate
Judge deemed to be an unexhausted claim (Issue E). The
Magistrate Judge also suggested that Issues B, C, and D
were time-barred by the one-year statute of limitations
imposed by the AEDPA. See 28 U.S.C. S 2244(d)(1)(A).
The District Court adopted the Magistrate Judge’s report
in part and rejected it in part. The court agreed with the
Magistrate Judge that Issues B, C, and D were time-barred.
The court applied the AEDPA limitations period to each
issue individually, reading the AEDPA to allow that
"potential petitioners could file claims underS 2254 on or
before April 23, 1997, for all claims arising before the
effective date." App. at 28 (emphasis added). Examining
each claim individually, the court concluded that, because
Sweger exhausted his state remedies as to Issues B, C, and
D before April 24, 1996, the effective date of the AEDPA,
the statute of limitations on these claims extended until
April 23, 1997. Since Sweger did not file his habeas petition
until nearly a year later -- on April 1, 1998-- the court
dismissed issues B, C, and D as time-barred. The court
_________________________________________________________________
3. The District Court and the parties refer to the claims raised in
Sweger’s habeas petition by letter (Issues A, B, C, D, E), and we do the
same.
6
held that Issues A and E were timely presented because
Sweger’s habeas petition was filed within one year of July
29, 1997, the date on which those issues were exhausted in
state court. Id. at 29-30.
Regarding Issue E, the court held that the claim was
constructively exhausted but procedurally defaulted
because Sweger’s pro se, nunc pro tunc application to file
his untimely brief with the Pennsylvania Superior Court,
and his application for leave to file a petition for allowance
of appeal to the Pennsylvania Supreme Court, were both
denied on procedural grounds. The District Court
remanded for the Magistrate Judge to consider the merits
of Issue A and whether Sweger could meet his burden of
demonstrating cause and prejudice to excuse the

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procedural default of Issue E.
Sweger objected to the dismissal of Issues B, C, and D on
statute of limitations grounds, and filed a motion for
reconsideration. The District Court denied this motion for
reconsideration on February 8, 1999. The court stated:
[T]he issues dismissed by this Court were not raised in
the second post-conviction relief petition. Therefore, the
statute of limitations does apply, barring those issues
from consideration by this Court. . . . Petitioner seems
to be under the impression that since he brought a
second post-conviction relief petition which was not
finalized until July 29, 1997, any and all claims raised
in his habeas corpus petition filed within one year from
that date should not be separately required to meet the
statute of limitations provision imposed by the AEDPA.
Petitioner is mistaken. The one year statute of
limitations period applies to each and every claim on
an independent basis.
Id. at 37 (emphasis in original).4
The Magistrate Judge issued an order on January 28,
1999, requiring briefing by the Commonwealth and inviting
Sweger to reply to the Commonwealth’s response.
_________________________________________________________________
4. Sweger then appealed the dismissal of Issues B, C, and D to this
Court. This Court dismissed the appeal for lack of jurisdiction as an
interlocutory appeal on July 6, 1999.
7
Regarding procedural default, the order stated in
underlined text:
(4) The response and any reply shall specifically
address the question of whether petitioner’s "Issue E"
is barred under the cause and prejudice standard by
the procedural default in state court, and in any event,
shall address the merits of petitioner’s "Issues A & E"
Id. at 35. The Commonwealth’s brief noted that the
Magistrate Judge asked it to respond to the procedural
default question, but in the argument section, the
Commonwealth only argued that Issue E should be denied
on the merits. It did not make any argument regarding
cause and prejudice, but it also did not expressly waive its
procedural default defense.
On September 27, 1999, the Magistrate Judge
recommended that Issue A be dismissed on the merits and
Issue E be dismissed because Sweger could not establish
sufficient cause and prejudice for his procedural default.5
Sweger filed objections to the report, chiefly arguing that he
need not show cause and prejudice because he presented a
claim of actual innocence of first-degree murder. Sweger
sought to demonstrate his actual innocence by pointing to

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the scientific testimony presented by his expert at trial
regarding diminished capacity. Sweger also argued that, if
counsel had informed him of his right to testify, he would
have been a trustworthy witness and could have
supplemented his expert witness’s testimony, thereby
establishing his innocence.
On February 7, 2000, the District Court adopted the
Magistrate Judge’s report and dismissed Sweger’s petition.
The court endorsed the Magistrate Judge’s disposition of
Issue A on its merits. As to Issue E, the District Court
agreed that Sweger could not establish cause and
_________________________________________________________________
5. Sweger’s proffered cause was the ineffective assistance of his retained
private counsel for the second PCRA petition. The Magistrate Judge
concluded that, because no right to counsel exists in post-conviction
proceedings, Sweger could not claim ineffective assistance. The
Magistrate Judge also found that no external factor impeded Sweger’s
efforts to raise his claims in state court.
8
prejudice, and held that Sweger’s actual innocence claims
were meritless. The District Court also denied Sweger a
Certificate of Appealability ("CAPP").
After proceeding pro se in the District Court, Sweger
retained private counsel for this appeal. Sweger decided not
to seek a CAPP for Issue D (regarding evidentiary rulings)
because counsel conceded it did not present a violation of
a constitutional right. Thereafter, a motions panel of this
Court granted Sweger a CAPP "on the issue of whether the
District Court erred in dismissing issues ‘B’ and‘C’ as time-
barred by AEDPA’s period of limitations." App. at 72. This
Court denied a CAPP for Issues A and E. Upon Sweger’s
motion for reconsideration, the same motions panel of this
Court expanded the CAPP to include Issue E, stating that
"jurists of reason would find it debatable whether the
defense of procedural default was waived in the District
Court." Id. at 73. We also instructed the parties to "address
the procedural default aspects and the merits of Issue ‘E’ in
their briefs." Id. Therefore, jurisdiction in this Court is
proper over Issues B, C, and E under 28 U.S.C. SS 1291
and 2253.
II.
We first consider the District Court’s dismissal of Issues
B and C on statute of limitations grounds. This Court has
plenary review over AEDPA statute of limitations issues.
See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).
The AEDPA, which became effective on April 24, 1996,
establishes a one-year statute of limitations for federal
habeas corpus petitions filed by a person in state custody.
The statute states, in relevant part:
(d)(1) A 1-year period of limitation shall apply to an

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application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of--
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time
for seeking such review . . .
9
28 U.S.C. 2244(d) (emphasis added). To avoid making this
limitations period impermissibly retroactive, this Court
established a one-year grace period for petitioners like
Sweger whose convictions became final before April 24,
1996. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir.
1998). Such petitioners may not have their petitions
dismissed as untimely if they filed their habeas petition
before April 23, 1997. See id.
This appeal requires us to construe the AEDPA’s tolling
provision, 28 U.S.C. S 2244(d)(2), which states:
The time during which a properly filed application for
State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation
under this subsection.
28 U.S.C. S 2244(d)(2) (emphasis added).
We must decide whether this tolling provision applies on
a claim-by-claim basis, requiring at least one or more of the
issues raised in the state collateral proceeding to be
included in the federal habeas petition, or whether a state
post-conviction proceeding attacking a judgment of
conviction tolls the period of limitations for the entire
habeas petition attacking that same judgment.
This question of statutory construction has never been
squarely decided by this Court, but we find guidance in the
opinions of three of our sister circuits which have
addressed this issue.6 The Ninth Circuit has held that
_________________________________________________________________
6. Although this question is one of first impression in this Circuit, we
have, on several occasions, strongly intimated without directly holding
that S 2244(d)(2) tolls the limitations period for the entire habeas petition
without regard to particular claims, so long as the state post-conviction
proceeding was properly filed and challenged the same judgment of
conviction as the habeas petition. See Stokes v. District Attorney of
County of Philadelphia, 247 F.3d 539, 541 (3d Cir. 2001) (stating that
the "time for filing the federal habeas petition at issue . . . was tolled
under 28 U.S.C. S 2244(d)(2), so long as the state petition was pending");
Morris v. Horn, 187 F.3d 333, 337 (3d Cir. 1999) (stating that if a second
PCRA petition was properly filed in state court, the habeas statute of
limitations would be tolled "because that petition was filed before the
10

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"AEDPA’s period of limitation is tolled during the pendency
of a state application challenging the pertinent judgment,
even if the particular application does not include a claim
later asserted in the federal habeas petition." Tillema v.
Long, 253 F.3d 494, 502 (9th Cir. 2001). The Seventh
Circuit concurred, concluding that "[a]ny properly filed
collateral challenge to the judgment tolls the time to seek
federal collateral review." Carter v. Litscher, 275 F.3d 663,
665 (7th Cir. 2001) (emphasis in original). Both of these
courts thoroughly rejected the Sixth Circuit’s contrary view
that "a state petition for post-conviction or other collateral
review that does not address one or more of the grounds of
the federal habeas petition in question . . . does not toll the
one-year AEDPA statute of limitations." Austin v. Mitchell,
200 F.3d 391, 395 (6th Cir. 1999), cert. denied , 530 U.S.
1210 (2000).
A.
We conclude at the outset that the District Court erred in
holding under the AEDPA that separate one-year
limitations periods apply to each claim raised in a habeas
petition, and that each limitations period runs from the
exhaustion of state remedies for each claim. The court held
that the one-year limitations period for Issue B ran from
March 20, 1995, when the Pennsylvania Supreme Court
denied review of the first PCRA petition. For Issue C, the
court found that the limitations period ran from January 9,
1987, when the Pennsylvania Supreme Court denied review
on direct appeal. Because each of these dates occurred
before the effective date of the AEDPA, April 24, 1996, the
court found that the limitations grace period on these
claims expired on April 23, 1997.
However, the AEDPA expressly establishes that the
limitations period applies "to an application for a writ of
_________________________________________________________________
first one was concluded, and it remains pending in state court"); Lovasz
v. Vaughn, 134 F.3d 146, 149 (3d Cir. 1998) (holding that under
S 2244(d)(2), because petitioner’s second PCRA petition was pending in
state court when the AEDPA took effect, the habeas limitations period
was tolled during the time of pendency).
11
habeas corpus" and runs from "the date on which the
judgment became final . . ." 28 U.S.C. S 2244(d)(1)
(emphasis added); see, e.g., Nara, 264 F.3d at 314-15. This
provision makes no mention of a limitations period for
individual claims in a habeas petition. It clearly applies to
the entire habeas petition and runs from the date on which
the judgment that the habeas petition attacks became final.
The District Court’s reading is contrary to the plain
language of S 2244(d)(1).
Under a proper reading of S 2244(d)(1), the court would
have found that because Sweger’s judgment became final

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on March 10, 1987,7 well prior to the effective date of the
AEDPA, Sweger had until April 23, 1997 to file his habeas
petition, absent tolling. Under its misapprehension of
S 2244(d)(1), the District Court nonetheless found that
Sweger had until April 23, 1997 to file Issues B and C,
because the dates on which these issues were exhausted
also were prior to the effective date of the AEDPA.
Therefore, while the District Court’s error did not directly
affect the outcome of this case, its faulty, claim-specific
view of S 2244(d)(1) contributed to its misreading of
S 2244(d)(2)’s tolling provision and suggests that it
fundamentally misinterpreted the AEDPA’s statute of
limitations.
B.
Sweger concedes that his federal habeas petition is time-
barred unless his second PCRA petition tolls the limitations
period for his entire petition. This is because Sweger filed
his habeas petition on April 1, 1998, nearly one year after
the expiration of the one-year grace period. He argues that
S 2244(d)(2) tolled the habeas limitations period during the
_________________________________________________________________
7. "[A] state court criminal judgment is‘final’ (for purposes of collateral
attack) at the conclusion of review in the United States Supreme Court
or when the time for seeking certiorari review expires." Kapral v. United
States, 166 F.3d 565, 575 (3d Cir. 1999). Since March 10, 1987 marked
the expiration of the sixty day period Sweger had to seek certiorari from
the U.S. Supreme Court after the Pennsylvania Supreme Court declined
to hear his case on direct appeal, Sweger’s judgment became final on
that date.
12
time in which his second PCRA petition was pending. 8 He
contends that because the second PCRA petition was"with
respect to the pertinent judgment" -- i.e. it attacked his
judgment of conviction and sentence -- the statute of
limitations was tolled for his entire habeas petition even
though the petition raised some issues that were not raised
in the second PCRA petition. Sweger’s second PCRA petition
was filed on February 1, 1996, and became final when the
Pennsylvania Supreme Court denied petition for leave to
appeal on July 29, 1997. He concludes that the habeas
limitations grace period did not begin to run until the
second PCRA petition was no longer pending, and therefore
he had one year from July 29, 1997 to file his habeas
petition. Since Sweger filed his habeas petition on April 1,
1998, well within this one-year period, he argues that the
District Court erred in dismissing Issues B and C as time-
barred.
The District Court did not mention the tolling provision
at all. However, the court suggested that it was familiar
with the tolling provision. The court noted, in denying
Sweger’s motion for reconsideration, that Issues B, C, and
D "were not raised in the second post-conviction relief
petition" and "[t]herefore, the statute of limitations does

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apply." App. at 37 (emphasis in original). Yet the court did
not cite to any case or other authority, nor did it provide
any reasoning or engage in any explicit statutory analysis
to support its conclusion that "[t]he one year statute of
limitations period applies to each and every claim on an
independent basis" and by implication that theS 2244(d)(2)
tolling provision did not apply to Issues B and C. Id.9 As
_________________________________________________________________
8. The parties concede that Sweger’s second PCRA petition was "properly
filed" under S 2244(d)(2). See Artuz v. Bennett, 531 U.S. 4, 8 (2000)
(noting that "an application is ‘properly filed’ when its delivery and
acceptance are in compliance with the applicable laws and rules
governing filings"); Lovasz, 134 F.3d at 148-49 (holding that a second or
subsequent PCRA petition is "properly filed" if it is "submitted according
to the state’s procedural requirements, such as the rules governing the
time and place of filing").
9. Echoing the District Court’s reasoning, the Commonwealth’s entire
argument in support of the court’s decision, aside from quoting the
opinion at length, is that Sweger’s view would "frustrate the entire
purpose of the statute of limitations of the AEDPA. The defendant could
extend the statute indefinitely by filing P.C.R.A. petition after P.C.R.A.
petition." Commonwealth. Br. at 12.
13
discussed above, the court’s holding that the habeas
statute of limitations period itself "applies to each and every
claim on an independent basis" is flatly incorrect.
Although we do not have the benefit of the District
Court’s full reasoning, we assume that it must have read
the phrase "with respect to the pertinent judgment or
claim" in S 2244(d)(2) to mean that a state post-conviction
proceeding only tolls the habeas limitations period as to
each individual claim raised in the state proceeding and not
as to the whole habeas petition. The court’s reading of
S 2244(d)(2) apparently links the limitations period with the
exhaustion requirement, because, in the court’s view,
tolling does not apply unless the state post-conviction
proceeding served to exhaust the issues brought in the
habeas petition.
The Sixth Circuit has similarly construed S 2244(d)(2) to
serve exhaustion purposes. In Austin, the petitioner
brought a state post-conviction proceeding raising two
claims. After that petition was denied, petitioner then filed
a federal habeas petition that included four claims, but
neither of the issues raised in the state post-conviction
proceeding. The timeliness of his habeas petition depended
on whether his post-conviction proceeding tolled the
limitations period. The court held that, because"[t]olling is
the complement of the exhaustion requirement," . . . "a
state petition for post-conviction or other collateral review
must present a federally cognizable claim for it to toll the
statute of limitations pursuant to 28 U.S.C. S 2244(d)(2)."
Austin, 200 F.3d at 395. The court found that only one of
his two state post-conviction petition claims, an ineffective

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assistance of appellate counsel claim, was federally
cognizable. However, this specific ineffective assistance
claim was "simply not one of the four grounds of
[Petitioner’s] federal habeas petition." Id. The court
reasoned:
Just as such state review must concern a federally
cognizable claim to toll the AEDPA period of limitation,
so also the rule should be that such review must
concern a federally cognizable claim that is being made
in the instant habeas petition. Otherwise, the purpose
of tolling, which is to provide the state courts with the
14
first opportunity to resolve the prisoner’s federal claim,
is not implicated.
Id. The court therefore refused to toll the AEDPA limitations
period and affirmed the dismissal of the petition as
untimely. Under the Sixth Circuit’s rule announced in
Austin, "a state petition for post-conviction or other
collateral review that does not address one or more of the
grounds of the federal habeas petition in question .. . does
not toll the one year AEDPA statute of limitations." Id.
Notably, however, neither the Sixth Circuit’s opinion in
Austin nor the District Court’s opinion in this case engaged
in any meaningful analysis of the actual text ofS 2244(d)(2).
"In any case turning on statutory interpretation, our goal is
to ascertain the intent of Congress. To accomplish this goal,
we begin by looking at the statute’s language. If the
language is plain, we need look no further." Ross v. Hotel
Employees and Restaurant Employees Int’l Union, 266 F.3d
236, 245 (3d Cir. 2001). We find that the District Court’s
reading of the statute and the Sixth Circuit’s rule lack
support in the plain language of S 2244(d)(2), and we join
the Ninth and Seventh Circuits in rejecting them entirely.
Section 2244(d)(2) states, "the time during which a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of
limitation under this subsection." 28 U.S.C.S 2244(d)(2)
(emphasis added). Reading this language to require that the
state post-conviction proceeding raise the claims contained
in the habeas petition ignores the use of the word
"judgment" in the statute. See Carter, 275 F.3d at 665
("Austin reads the word "judgment" out of S 2244(d)(2) and
tolls the time only while a particular ‘claim’ . . . is before
the state court. That is just not what the statute says. Any
properly filed collateral challenge to the judgment tolls the
time to seek federal collateral review.") (emphasis in
original).
Furthermore, when coupled with the District Court’s
erroneous, claim-specific view of the S 2244(d)(1) limitations
period itself, the District Court’s reading would render the
tolling provision irrelevant. If the state post-conviction

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15
proceeding served to exhaust claims later brought in the
federal habeas petition, and if, as the District Court held,
the habeas limitations period for each of the claims did not
begin until the conclusion of those proceedings (i.e. until
each claim was exhausted), then tolling during the
pendency of the state collateral proceeding would be
unnecessary. If the state collateral proceeding involved
claims not brought in a later federal habeas petition, then
tolling would not apply because, according to the District
Court, the tolling provision applies only on a claim-by-claim
basis to claims raised in the state proceeding. Therefore,
the District Court would effectively write the tolling
provision out of the AEDPA. We surely cannot approve of
such reasoning. See Trustees of Amalgamated Ins. Fund v.
Sheldon Hall Clothing, Inc., 862 F.2d 1020, 1023 (3d Cir.
1988) (instructing that "it is a canon of statutory
construction that a statute should be interpreted, wherever
possible, to give effect to all of its component parts") (citing
Mountain States Tel. & Tel. Co. v. Santa Ana, 472 U.S. 237,
249 (1985) and Reiter v. Sonotone Corp., 442 U.S. 330, 339
(1979)).10
_________________________________________________________________
10. We note that the District Court in this case went well beyond even
the limited scope of Austin in applying the tolling and limitations
provisions on a claim-by-claim basis. In this case, Issues A and E of
Sweger’s habeas petition were raised in his second PCRA petition. For
tolling to apply, Austin only required that the state proceeding raise "one
or more of the grounds of the federal habeas petition." Austin, 200 F.3d
at 395. The Sixth Circuit did not mandate that the state proceeding raise
every issue raised in the federal petition, nor did it apply the limitations
period on a claim-by-claim basis. Even under the Sixth Circuit’s reading
of S 2244(d)(2), the limitations period applicable to Sweger’s habeas
petition would be tolled during the pendency of his second PCRA
petition.
Austin, itself, rests on untenable reasoning, yet the District Court’s
claim-by-claim approach goes even further than did Austin. The period
of limitation to which tolling applies in this case is the one-year
limitations period on "an application for a writ of habeas corpus." 28
U.S.C. S 2244(d)(1) (emphasis added). As discussed above, this period
does not apply on a claim-by-claim basis, but rather governs the entire
habeas petition. Therefore, if tolling applies, the entire petition, rather
than individual claims, enjoys the benefit of tolling. The District Court
erred in applying both the underlying limitations period and the tolling
provision on a claim-by-claim basis.
16
As with the interpretation advocated by the Sixth Circuit,
the District Court’s view also fails to give the words
"judgment" and "claim" separate meanings despite the fact
that the words are separated in the statute by the
disjunctive term "or." "[C]anons of construction ordinarily
suggest that terms connected by a disjunctive be given

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separate meanings unless the context dictates otherwise."
United States v. Urban, 140 F.3d 229, 232 (3d Cir. 1998).
The Ninth Circuit, in rejecting Austin, assessed the context
of S 2244(d)(2). The court examined S 2244(d)(1), and
correctly concluded that Congress understood the
distinction between "judgment" and "claim," and, therefore,
"did not intend that the first word employed in the
provision be ignored." Tillema, 253 F.3d at 500.11 Section
2244(d)(1) provides that the period of limitations runs from
the latest of several possible dates, including"(A) the date
on which the judgment became final . . ." or "(D) 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. S 2244(d)(1) (emphasis added).
Therefore, the Ninth Circuit reasoned from this context that
"[s]ection 2244(d)(2) tracks the language of section
2244(d)(1) in providing for statutory tolling so long as the
state collateral petition either attacks the pertinent
judgment or contains the pertinent claim." Tillema, 253
F.3d at 500 (emphasis in original).
This interpretation satisfactorily accounts not only for the
use of the word "judgment" in the provision, but also for
the use of the word "claim." As the Ninth Circuit noted,
_________________________________________________________________
11. Petitioner in Tillema, in addition to filing other state proceedings,
filed a "Motion to Vacate Illegal Sentence and Remand for a Proper
Sentencing Hearing" in October 1995. In August 1998, almost three
years after the motion was filed, the state supreme court denied the
motion. In September 1998, petitioner filed a new federal habeas petition
and argued that the period of limitations was tolled by the second
"Motion to Vacate," which only became final one month prior to his
federal filing. The state argued that tolling did not apply because the
"Motion to Vacate" did not include a claim raised in the federal habeas
petition, and that it was "not enough . . . that[Petitioner’s Motion]
sought relief with respect to the same judgment ." Tillema, 253 F.3d at
499 (emphasis in original).
17
"[a]lthough it is true that in most cases a state application
that includes a pertinent claim will also, as a matter of
course, relate to the pertinent judgment, such will not
always be the case." Id. at 500 n.7. The court cited
examples such as habeas petitions challenging details of
death penalty application or other matters with"no bearing
on the underlying judgment of conviction and sentence." Id.
Therefore, this reading does not render the word"claim"
surplusage. We also agree with the Ninth Circuit that
Congress’s inclusion of the word "pertinent" is "simply a
shorthand way of saying, ‘the judgment of conviction and
sentence in the state court that is being contested in the
federal habeas proceeding.’ " Id. at 500 n.8.
C.
As a matter of plain language, a properly filed state post-
conviction proceeding challenging the judgment tolls the

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AEDPA statute of limitations during the time the state
proceeding is pending. Because the statutory language is
clear, both the Supreme Court and our own precedent
dictate that we need not examine policy considerations
such as the alleged linkage between tolling and exhaustion
relied upon in Austin and perhaps by the District Court
here. When there is "only [one] permissible interpretation of
the text," . . . "[w]hatever merits . . . policy arguments may
have, it is not the province of [courts] to rewrite the statute
to accommodate them." Artuz v. Bennett, 531 U.S. 4, 10
(2000). Even if we were to examine the exhaustion
implications, "the statute of limitations (which is the issue
before us in this case) and the exhaustion doctrine (which
is not) impose entirely distinct requirements on habeas
petitioners; both must be satisfied before a federal court
may consider the merits of a petition." Tillema, 253 F.3d at
502.
Furthermore, our plain reading of the tolling provision
does not undermine exhaustion concerns; quite the
opposite, it advances the goals of federalism and comity
enshrined in the AEDPA and the exhaustion requirement.
Tolling the habeas limitations period while a state collateral
proceeding is pending allows the state courts every
available opportunity to resolve all constitutional claims
18
before federal courts consider such claims in a habeas
petition. By not penalizing petitioners who delay filing
federal habeas petitions until their state post-conviction
proceedings are concluded, tolling also encourages
petitioners to utilize their state court options fully before
filing federal habeas petitions. See Carter, 275 F.3d at 665
("A state court must be given the first opportunity to
address the federal issue, but this exhaustion requirement
can be satisfied on direct appeal as well as on collateral
attack. . . . A state collateral proceeding based solely on
state-law issues may avoid the need for federal relief, and
a tolling rule permits prisoners to pursue such theories in
state court without jeopardizing their ability to raise the
federal constitutional issues later in federal court, if that
proves to be necessary.") (internal citations omitted);
Tillema, 253 F.3d at 501 ("[W]hen a state court is willing to
entertain a challenge to the validity of the pertinent
judgment, a result that is favorable to the petitioner will
ordinarily avert any federal intervention regarding the
legality of the prisoner’s continued confinement.").
The Commonwealth might be correct in its argument that
Sweger’s view of S 2244(d)(2) would allow petitioners in
some cases to extend the habeas limitations period
indefinitely by filing PCRA petition after PCRA petition. Yet,
as the Supreme Court instructed in Artuz, this
consideration cannot trump the plain meaning of the
statutory text; we must read the statute to mean what it
says. Furthermore, if any problem of "endless" multiple
state post-conviction petitions arises, it should properly be
addressed by state law, and any attempt to resolve such

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problems by way of federal habeas law would hinder the
federalism and comity interests that are so important in
this area. As this Court stressed in an earlier decision
allowing a second PCRA petition to be deemed "properly
filed" under S 2244(d)(2) and therefore toll the habeas
limitations period:
if a state allows petitioners to file second or subsequent
petitions for post-conviction relief, federal courts
should not undermine the state’s decision by refusing
to toll the one-year period of limitation of S 2244(d)(1)
where a second or subsequent petition is pending in
19
the state court system. Nor should we discourage
petitioners from exhausting all their claims in state
court, even by means of a second or subsequent
petition for post-conviction relief where permissible
under state law, before seeking habeas review in
federal court.
Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998).12 The
District Court’s confusing and impractical claim-by-claim
approach is contradicted by the plain text and purpose of
the statute, and we reject it.
We hold that under S 2244(d)(2), a properly filed state
post-conviction proceeding challenging the judgment tolls
the AEDPA statute of limitations during the pendency of the
state proceeding. Whether the federal habeas petition
contains one or more of the claims raised in the state
proceeding does not matter as long as the state proceeding
and the federal habeas petition attack the same judgment.
Here, both Sweger’s second PCRA petition and his habeas
petition challenge his judgment of conviction. The statute of
limitations for his habeas petition was tolled until July 29,
1997, when the second PCRA petition became final, and
Sweger had one year from that date to file his habeas
petition. Because Sweger filed his habeas petition on April
1, 1998, his petition was timely. The District Court erred in
dismissing Issues B and C on statute of limitations
grounds. We remand these issues to the District Court to
consider them on the merits.
III.
We next examine the District Court’s dismissal of Issue E
of Sweger’s habeas petition on the basis of procedural
_________________________________________________________________
12. Indeed, at oral argument, counsel for the Commonwealth suggested
that Pennsylvania has amended the PCRA to render many subsequent
PCRA petitions, such as Sweger’s, not properly filed and therefore not
eligible to trigger AEDPA tolling. See 42 Pa. Cons. Stat. S 9545(b)
(establishing one-year limitations period for PCRA petitions, including
second or subsequent petitions, generally running from date judgment
becomes final). This revision indicates that the states are fully capable of
addressing any possible negative effects that might result from

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application of the plain meaning of S 2244(d)(2).
20
default. Federal courts may not hear claims that have been
procedurally defaulted unless petitioner can meet his
burden to excuse the default. This Court has held that
"federal courts may not consider the merits of such claims
unless the applicant establishes ‘cause and prejudice’ or a
‘fundamental miscarriage of justice’ to excuse his or her
default." McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.
1999) (citing Coleman v. Thompson, 501 U.S. 722, 750
(1991)).
Sweger argues that the District Court erred in relying on
procedural default to dispose of Issue E because, he claims,
the Commonwealth waived the defense and the court
should not have considered the issue sua sponte . He
emphasizes that the Magistrate Judge specifically directed
the Commonwealth to address the question of procedural
default of Issue E in its response to Sweger’s petition, but
that the Commonwealth merely acknowledged that directive
in its brief and proceeded to argue only the merits of Issue
E, failing to present any arguments relating to procedural
default. Sweger further argues that, if procedural default
was properly considered, then the District Court erred in
not excusing his procedural default on the basis of his
showing of actual innocence.
A.
This Court has ruled that we may, in our discretion,
consider whether a claim is procedurally defaulted sua
sponte. Szuchon v. Lehman, 273 F.3d 299, 321 n.13 (3d
Cir. 2001); Smith v. Horn, 120 F.3d 400, 408 (3d Cir. 1997)
(citing cases with similar holdings from the First, Second,
Ninth, and Tenth Circuits).13 A district court also has the
discretion to raise the issue sua sponte. See, e.g., Boyd v.
_________________________________________________________________
13. "We retain this discretion because the doctrine of procedural default,
while not a jurisdictional rule, ‘is grounded upon concerns of comity
between sovereigns and often upon considerations of judicial efficiency.’
. . . ‘Because these concerns substantially implicate important interests
beyond those of the parties, it is not exclusively within the parties’
control to decide whether such a defense should be raised or waived.’ "
Szuchon, 273 F.3d at 312 n.13 (quoting Hardiman v. Reynolds, 971 F.2d
500, 503 (10th Cir. 1992)).
21
Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998) ("Every
circuit to consider the issue holds that a habeas court has
discretion to raise procedural default sua sponte to further
the interests of comity, federalism, and judicial efficiency.");
Magouirk v. Phillips, 144 F.3d 348, 358 (5th Cir. 1998)
("[W]e join our sister circuits by adopting the rule that a
federal district court may, in the exercise of its discretion,

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raise a habeas petitioner’s procedural default sua sponte
and then apply that default as a bar to further litigation of
petitioner’s claims."). In making the determination whether
to do so, this Court has stated:
In Smith, we explained that . . . with respect to the sua
sponte consideration of nonexhaustion . . . the values
of comity, federalism, judicial efficiency, and the"ends
of justice" must be weighed in determining whether to
consider the default. We noted that it might be
inappropriate to raise a default where "it is evident that
a miscarriage of justice has occurred," explaining that
a miscarriage of justice in this context " ‘should include
cases where the record is well developed and the merits
strongly support the petitioner’s claim.’ ". .. .
[W]e [further] observed in Smith that "when the state
has never raised an issue in either the district court or
this Court we should be even less inclined to raise it
sua sponte than when the state either has raised the
issue here only belatedly or has raised it in the district
court but has not pursued that line of attack in the
court of appeals."
Szuchon, 273 F.3d at 321 n.13 (citations omitted).
Applying these standards to this case, we conclude that
the District Court did not abuse its discretion in raising the
issue of procedural default sua sponte. Sweger correctly
claims that, in response to the Magistrate Judge’s order
that the Commonwealth address the procedural default
question, the Commonwealth did not present any
procedural default arguments, instead arguing against
Issue E wholly on its merits. App. at 110-17. Yet, interests
of comity and federalism support consideration of
procedural default here because both the intermediate
appellate and state supreme court barred Sweger’s Issue E
claims on procedural grounds.
22
It is true that the Commonwealth’s appellate brief fails to
defend the sua sponte invocation of the procedural default
defense by the District Court. Indeed, the Magistrate Judge
and the District Court themselves simply raised the issue
without comment or even reference to the standards for sua
sponte invocation. Sweger thus argues that the District
Court erred by not considering factors such as the
underlying merits of Issue E. While the Commonwealth did
not present any procedural default arguments to the
Magistrate Judge or the District Court, the record regarding
the procedural default before us is well developed. The
Commonwealth’s appellate brief explicitly addresses
procedural default issues, namely cause, prejudice, and
actual innocence. Commonwealth Br. at 13-15. After being
requested in the Magistrate Judge’s order to address
procedural default, Sweger has had several opportunities to
present his procedural default arguments, and he has done
so both in the objections he filed to the Magistrate Judge’s

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Report and Recommendation and in his appellate brief to
this Court. Our review also indicates that Issue E does not
"plainly warrant" relief.14 For these reasons, the District
Court did not abuse its discretion, and we will consider the
procedural default defense, particularly to determine
whether Sweger may establish any excuse for his
procedural default of Issue E. See Szuchon, 273 F.3d at 321
n.13 (addressing procedural default sua sponte in part
because the record on default was well-developed, both
parties briefed the default issue, and supplemental briefing
or remand would not be required to resolve the issue);
Smith, 120 F.3d 408-09 (declining to raise procedural
default sua sponte, in part because "the record with regard
to the procedural default issue itself is sparse" and noting
that "where relief is ‘plainly warranted,’ " courts should
decline to raise the issue sua sponte).
_________________________________________________________________
14. The substantive arguments underlying two of Issue E’s ineffective
assistance claims (suppression of incriminating statements made to
police; admission of false testimony) were rejected by the state courts on
direct appeal. As for Issue E’s third claim, failure of trial counsel to
prepare and investigate sufficiently, an initial review of the admittedly
incomplete state record before us indicates that counsel was not
constitutionally deficient in his preparation.
23
B.
We believe that the District Court correctly deemed Issue
E constructively exhausted but procedurally defaulted
because the Pennsylvania Superior Court and the
Pennsylvania Supreme Court refused to hear the merits of
Issue E and, instead, dismissed it on procedural grounds.15
We also agree with the District Court that Sweger cannot
show cause for his procedural default.16 Sweger primarily
argues on appeal that he has shown that he is actually
innocent of first-degree murder and thereby has proven a
"fundamental miscarriage of justice" sufficient to excuse his
default.17
We have plenary review over the District Court’s
determination of Sweger’s claim of actual innocence. Hull,
190 F.3d at 97. To establish actual innocence, "a habeas
_________________________________________________________________
15. "When a claim is not exhausted because it has not been "fairly
presented" to the state courts, but state procedural rules bar the
applicant from seeking further relief in state courts, the exhaustion
requirement is satisfied because there is ‘an absence of available State
corrective process.’ In such cases, however, applicants are considered to
have procedurally defaulted their claims . . ." McCandless, 172 F.3d at
260 (quoting 28 U.S.C. S 2254(b)(1)(A)).
16. "The Supreme Court has delineated what constitutes ‘cause’ for the
procedural default: the petitioner must ‘show that some objective factor
external to the defense impeded counsel’s efforts to comply with the
State’s procedural rule.’ " Werts v. Vaughn, 228 F.3d 178, 192-93 (3d

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Cir. 2000), cert. denied, 121 S.Ct. 1621 (2001) (quoting Murray v. Carrier,
477 U.S. 478, 488 (1986)). The District Court here found that Sweger’s
asserted causes, chiefly ineffective assistance of PCRA counsel, were
insufficient because there is no right to counsel for state post-conviction
proceedings and, therefore, no claim of constitutionally ineffective
assistance of counsel may be made.
17. As we did in Glass v. Vaughn, 65 F.3d 13 (3d Cir. 1995), we assume
arguendo for purposes of this opinion that the actual innocence test
applies in a non-capital case where "there is evidence that defendant
committed the crime but argues that he or she was responsible for a
lesser degree of guilt." Glass, 65 F.3d at 16. In Glass, petitioner argued
that he was actually innocent of first-degree murder because of his
diminished capacity and instead was guilty only of third-degree murder.
This is precisely Sweger’s claim here. We again noted this assumption
without resolving the question of whether actual innocence applies in
Cristin v. Brennan, 281 F.3d 404, 421-22 & n.17 (3d Cir. 2002).
24
petitioner must ‘persuade[ ] the district court that, in light
of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable doubt.’ "
Cristin v. Brennan, 281 F.3d 404, 420 (3d Cir. 2002)
(quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). Actual
innocence means "factual innocence, not mere legal
insufficiency." Bousley v. United States, 523 U.S. 614, 623
(1998). The Supreme Court has required a petitioner"to
support his allegations of constitutional error with new
reliable evidence -- whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical
physical evidence -- that was not presented at trial."
Schlup, 513 U.S. at 324 (emphasis added); see also Cristin,
281 F.3d at 420. "Because such evidence is obviously
unavailable in the vast majority of cases, claims of actual
innocence are rarely successful." Schlup, 513 U.S. at 324;
see also Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir. 2000)
(noting that the actual innocence exception "will apply only
in extraordinary cases").
Sweger argued to the District Court that scientific
evidence presented at trial regarding his diminished
capacity proved that he was innocent of first-degree
murder, and that trial counsel’s ineffective assistance in
failing to allow Sweger to testify deprived the jury of
trustworthy evidence which would have also proven him
innocent of first-degree murder. The District Court rejected
Sweger’s reliance on the scientific evidence since that
evidence was not new and was deemed unpersuasive by the
jury. The District Court held that Sweger presented no
other new evidence or witnesses, and, because his
ineffective assistance claim (framed as Issue A in his
habeas petition) was meritless and unsupported by the
record, Sweger could not make a colorable claim of factual
innocence.
New reliable evidence is almost always required to
establish actual innocence.18 In Glass v. Vaughn, 65 F.3d
_________________________________________________________________

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18. As did the petitioner in Cristin, Sweger argues that he may rest on
the trial record without presenting any new evidence, relying on United
States v. Garth, 188 F.3d 99 (3d Cir. 1999). However, as this Court
observed in Cristin, "In Garth, however, we were persuaded that the
25
13 (3d Cir. 1995), petitioner did not argue diminished
capacity at his trial but presented new evidence of it in his
habeas petition in an attempt to show that he was actually
innocent of first-degree murder, and only guilty of third-
degree murder. We still rejected petitioner’s actual
innocence claim because, based on all of the evidence,
including new evidence, we could not "conclude that no
rational juror would have voted to convict [petitioner] of
first-degree murder." Id. at 17 (emphasis in original). Here,
Sweger argued diminished capacity at trial, and the jury
rejected that defense. Sweger also argues that prejudicial
and inadmissible evidence impeded the jury’s ability to
reach a fair verdict. Many of his contentions in this regard
were considered and denied at various points during
Sweger’s direct appeal and in his two PCRA petitions. Even
if they were not, Sweger’s arguments at best allege the legal
insufficiency of his conviction, rather than establish his
factual innocence on the basis of new evidence. As the
Supreme Court has stated, actual innocence requires a
showing of factual innocence, not mere legal insufficiency.
Bousley, 523 U.S. at 623.
Especially considering the extremely high burden a
petitioner must meet to show actual innocence, we agree
with the District Court that Sweger presents no new
evidence such that no reasonable juror could have
convicted him of first-degree murder. Because he cannot
make out a claim of actual innocence, Sweger’s procedural
default of Issue E may not be excused. We affirm the
District Court’s dismissal of Sweger’s habeas claims under
Issue E.
_________________________________________________________________
Supreme Court had reinterpreted the statute under which the petitioner
was convicted to require more conduct than was allegedly committed."
Cristin, 281 F.3d at 420-21. Further, Sweger’s brief forthrightly
acknowledges that, in Garth, "the Court looked only at the trial evidence,
but did so in the light of a new and authoritative construction of the
statute under which the defendant had been convicted." Sweger Br. at
30 (emphasis in original). As in Cristin, no such circumstances exist
here. Sweger may not rely on Garth, and we require that he show some
new evidence.
26
IV.
For the foregoing reasons, we reverse the District Court’s
dismissal of Issues B and C and affirm the District Court’s
dismissal of Issue E. We remand this case to the District

-- 21 of 22 --

Court to consider Issues B (ineffective assistance of trial
counsel in failing to preserve the issue of denial of
individual voir dire) and C (disposition by the Pennsylvania
Superior Court on direct appeal of challenges to jury
instructions in a manner contrary to U.S. Supreme Court
precedent) on their merits.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
27

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