Lisa Michelle Lambert v. Charlotte Blackwell (administrator of the Edna Mahan Correctional Facility for Wom En)

1
PRECEDENTIAL
UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 03-2282, 03-2383
LISA MICHELLE LAMBERT,
Appellant
v.
CHARLOTTE BLACKWELL
(ADMINISTRATOR OF THE
EDNA MAHAN CORRECTIONAL
FACILITY FOR WOM EN);
THE ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA
On Appeal from the
United States District Court for the
Eastern District of Pennsylvania
(Dist. Court No. 01-cv-2511)
District Judge: Hon. Anita B. Brody
Argued: January 12, 2004
Before: ALITO, CHERTOFF, and
BECKER, Circuit Judges.
(Filed: October 12, 2004)
Peter S. Greenberg, Esquire (Argued)
Nancy Winkelman, Esquire
Jonathan S. Liss, Esquire
Han Nguyen, Esquire
Schnader Harrison Segal & Lewis LLP
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Counsel for Appellant/Cross-Appellee
Gerald J. Pappert
Attorney General
William H. Ryan, Jr.
Executive Deputy Attorney General,
Criminal Law Division
Amy Zapp (Argued)
Senior Deputy Attorney General,
Capital Litigation Unit
Jerome T. Foerster
Senior Deputy Attorney General,
Appeals and Legal Services Section
Office of The Attorney General
16th Floor, Strawberry Square
Harrisburg, PA 17120
Counsel for Appellee/Cross-Appellant
OPINION OF THE COURT
TABLE OF CONTENTS
I. BACKGROUND . . . . . . . . . . . . . . 3
A. The Trial . . . . . . . . . . . . . . . . . . 4
1. The Commonwealth’s Case 5
2. Lambert’s Case . . . . . . . . . . 9

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B. Procedural History . . . . . . . . . 14
II. JURISDICTION AND
STANDARD OF REVIEW . . . . . 18
III. DISCUSSION . . . . . . . . . . . . . . . 19
A. Exhaustion . . . . . . . . . . . . . . . . 20
B. Deference . . . . . . . . . . . . . . . . . 23
C. The Merits . . . . . . . . . . . . . . . . 34
1. The Sweatpants . . . . . . . . . 35
a. Knowing Use of Perjured
Testimony . . . . . . . . . . 35
b. “Switching” Evidence . 39
2. Evidence of Yunkin’s
Location During the
Murder . . . . . . . . . . . . . . . . 42
a. Knowing Use of Perjured
Testimony . . . . . . . . . . 44
b. Suppression of Brady
Material . . . . . . . . . . . . 49
3. The “29 Questions” . . . . . . 51
4. The Crime Scene
Photographs . . . . . . . . . . . . 54
5. The Dying Declaration . . . 57
6. The DA’s Contact with
Lambert’s Trial Expert . . . 59
7. The River Search . . . . . . . . 65
a. Brady Violation
Concerning the Pink Bag
and Sneaker . . . . . . . . . 65
b. Knowing Use of Perjured
Testimony . . . . . . . . . . 67
c. Brady Violation
Concerning the Rope . . 68
d. Destruction of
Evidence . . . . . . . . . . . 69
IV. CONCLUSION . . . . . . . . . . . . 69
CHERTOFF, Circuit Judge.
Before us, after a lengthy journey
up and down the state and federal justice
systems, is the habeas petition of Lisa
Michelle Lambert. Lambert is currently
serving a life sentence without the
possibility of parole for first degree
murder. Judge Lawrence Stengel of the
Court of Common Pleas for Lancaster
County, Pennsylvania imposed the
sentence on Lambert after he found
Lambert guilty at a bench trial held in July
of 1992.
Lambert initially appealed her
conviction in the Pennsylvania state
courts, which rejected her claims on direct
appeal. She thereafter filed a petition for a
writ of habeas corpus in federal district
court. After holding a hearing over the
course of three weeks, Judge Stewart
Dalzell of the Eastern District of
Pennsylvania found Lambert “actually
innocent” and granted her petition. He
specifically barred any retrial.
Lambert was released into the
custody of her attorneys on April 16,
1997, but her freedom was short-lived.
Less than a year later, this Court vacated
the District Court’s judgment due to
Lambert’s failure to exhaust her available
state court remedies, namely collateral

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

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

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

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

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The Commonwealth called Yunkin
to the stand to testify about the events
surrounding Show’s murder. Yunkin
testified that he drove Lambert to K-Mart
the night before the slaying, on December
19, 1991. He waited in the car while she
purchased rope and two knit ski hats.
Lambert woke Yunkin up early the
next morning. According to Yunkin,
Lambert put on a pair of his sweatpants,
one of his flannel shirts, and a “jergo” (a
hooded sweatshirt). He testified that
Lambert often wore his clothes at the time
because she was almost seven months
pregnant.
They drove to pick up Tabatha
Buck, arriving at her house at
approximately 6:30 a.m. Yunkin dropped
Lambert and Buck off in a wooded area
along Oak View Road, a road that ran next
to the condominium complex where
Laurie Show lived. Lambert told him to go
to a nearby McDonald’s restaurant,
Yunkin testified, and come back in a half
hour. Buck told him not to lock the doors
because they might have to make a fast
getaway.
Yunkin testified that he arrived at
McDonald’s at 6:50 a.m. and waited for
the restaurant to open at 7 a.m. He bought
some food when the McDonald’s opened
and then left to pick up Lambert and
Buck. He stayed at McDonald’s for
approximately fifteen minutes in total.5
Lambert and Buck were not present
when he arrived to pick them up, so he
drove around a little. He passed by their
meeting spot on Oak View Road several
times before Lambert and Buck showed
up and got in the car. As they drove home,
Yunkin asked Lambert what happened.
She told him “not to worry about it” and
that she would “tell [him] later if [he]
needed to know.” App. 258.
The inhabitant of the apartment
below the Shows’, Richard G. Kleinhaus,
also testified at the trial. Kleinhaus said
that he woke up at around 5:45 a.m. on the
morning of Show’s murder. From his
window, he saw Hazel Show leaving the
complex. Kleinhaus heard the front door
slam above him, followed by a scream and
a thump on the floor of the bedroom. Six
or eight minutes later, he heard the door
slam again. At that time, around ten or
twelve minutes after seven o’clock, he
looked out the window and saw two
people of identical height (approximately
5' 7") exit the stairwell.
The Commonwealth also elicited
testimony from Frederick E. Fry, another
resident of the condominium complex. Fry
testified that at 7:13 a.m. he was waiting
in his car while he let the engine idle for a
little while. As he backed his car out, Fry
saw two individuals to his right. They
passed in front of his car as he started
forward, and he saw that one was a little
shorter and heavier than the other. He
5 A McDonald’s employee
corroborated Yunkin’s testimony. She
testified that she served Yunkin between 7
and 7:15 a.m., and he stayed for
approximately fifteen or twenty minutes.

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

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

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

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

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12
Lambert eventually heard the front
door slam. Yunkin bounded down the
stairs and told Lambert he was going to
get the car; Buck followed, with blood on
her clothes and the knife in her hands. She
stared at Lambert, and Lambert retreated.
Yunkin yelled “Tabby! Get her!” and
Lambert began to run.
Lambert did not know where she
was running, but she eventually came out
along a road. Yunkin sped out of the
condominium complex and picked up
Lambert and Buck. Yunkin was saying
“Oh, shit!” because he had passed Hazel
Show as he was driving out of the
condominium complex and she had
looked right at him. He then pushed
Lambert’s head down because they were
passing Show’s school bus.
The three of them drove to Lambert
and Yunkin’s home. Buck and Yunkin put
their bloody clothes in the trash can. A
dispute arose over whether Show was
dead and, if so, who had killed her.
Yunkin said that Buck had killed Show.
Buck said that Show was dead, but she
was not sure whether she or Yunkin had
killed her.
Eventually, Yunkin and Lambert
met with Buck again and refined their alibi
story. They also came across a newspaper
that contained news of Show’s death.
Upon learning the news, Lambert testified,
Yunkin and Buck sang a mocking song
and laughed hysterically.
Lambert admitted that upon her
arrest she told the police at least two false
versions of what happened, the alibi story
and the version in which Buck was solely
responsible for Show’s murder and
Yunkin had little involvement. She told
the police the latter story because Yunkin
was afraid of going to prison for the rest
of his life and he told Lambert that she
would receive less time because she was a
pregnant woman. As a result, she agreed
to cover up Yunkin’s involvement.
To support her case, Lambert also
relied (in addition to her own testimony)
on expert testimony concerning Show’s
death, evidence tending to show that
Yunkin had violent propensities, and a
document that allegedly passed between
her and Yunkin while they were both in
prison awaiting trial. The document was
comprised of twenty-nine questions posed
by Lambert to Yunkin with answers
inscribed next to them. It contained, for
example, the following:
6) [Question:] I don’t
understand! Why not tell
about Laurie? Are you
afraid you couldn’t? Did she
look scary dead—like
Tressa? I want to go home
and have my baby twins!
What if one of them dies
because they need Mommy?
I don’t want to cover up for
you. I never should have
agreed, and I’m mad, and
pearl earring found in the apartment.
Yunkin testified that it was Lambert’s
earring but he had also worn it on
occasion (about three times).

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13
still sad! [Answer:] Yes and
Yes.
7) [Question:] It’s not my
fault that things went wrong
(our prank) Friday morning!
Do you even care? I still
blame you and Tabby!
[Answer:] Just wish it
didn’t happen.
. . . .
10) [Question:] I know I’m
not an angel, but, Lawrence,
I never get mad enough to
kill! Your temper blew,
[and you] hurt her, this time
so bad that she can’t get
better. To me, it’s a surprise
it was on her, and she will
never live again! I wanted
to get god-damn Tabby
away from her, [you] got in
the bedroom and blew up
[and] went decided to do
things your way—violent!
That should’ve been me that
you killed. I hate you!
[Answer:] I don’t hate
anyone. God said, it is
wrong to hate.
PCRA Decision (attachment). Yunkin
admitted, upon cross examination, that he
and Lambert had passed a document back
and forth through the prison law library in
which he answered questions that she
asked. He testified, however, that the
document presented to him at trial, the “29
Questions,” appeared tampered with and
different from the document he recalled
exchanging with Lambert. App. 321. He
claimed, for example, that he had never
seen the sixth question or tenth question.
Yunkin testified that in the
document that passed between him and
Lambert, Lambert had written the
questions in pencil and he had written all
his answers in pencil and then traced over
every other word in ink so that they could
not be changed. But Lambert’s expert
testified that there was no indication of
any pencil writing on the 29 Questions,
and the questions and answers were
written with two different pens. After the
Commonwealth had an expert from the
Pennsylvania State Police crime lab
examine the document, Lambert and the
government entered into a stipulation that
there were no erasures or graphite on the
document. The Commonwealth conceded
that if its expert were called to the stand,
he would essentially agree with Lambert’s
expert.
To bolster her argument that the 29
Questions showed it was Yunkin who
murdered Show, Lambert elicited
testimony that Yunkin was a violent
individual. Yunkin himself testified that
he had hit Lambert three times, though he
said it was accidental all but once. And
Lambert testified that Yunkin wanted to
fight an individual named Brad Heiser,
Show’s boyfriend at the time of her death.
Lambert also called experts to
testify to the circumstances surrounding
Show’s death. John C. Balshy, a crime
scene expert, testified that the letters “T”
and “B” appeared written in blood on the

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14
door next to where Show’s body lay when
she died. He opined that Show leaned over
and wrote the letters to identify Tabatha
Buck as her assailant.
Lambert also offered expert
testimony tending to show that Show
could not have said “Michelle did it”
because she was probably unconscious
and, in any case, physically unable to
articulate those words. Dr. Isidore
Mihalakis testified that, given Show’s
wounds, she would have become
unconscious “considerably less than a half
hour” after sustaining her injuries. App.
388. Moreover, Dr. Mihalakis testified
that the wounds to Show’s throat would
have hindered her ability to speak. He also
testified that it was “extremely unlikely”
that a female could have wielded the knife
with enough strength to break the tip off,
as had happened to the knife used to kill
Show.
B. Procedural History
Before resting her case, Lambert
moved for a mistrial due to prosecutorial
misconduct. She argued, among other
things, that the Commonwealth knowingly
elicited perjured testimony from Yunkin
regarding the 29 Questions. The Court
denied Lambert’s motion and, on July 27,
1992, found Lambert guilty of first degree
murder and criminal conspiracy to commit
murder.11
The sentencing phase ensued, and
Judge Stengel declined to impose the
death penalty. Instead, he sentenced
Lambert for first degree murder to a
statutorily mandated term of life
imprisonment without the possibility of
parole.
The next day, Lambert filed a set of
motions for arrest of judgment and a new
trial. Among her many arguments was that
the Commonwealth had offered
insufficient evidence to sustain the verdict.
Judge Stengel denied Lambert’s motions
in a comprehensive opinion.
In the opinion, the Court
extensively canvassed the evidence at trial
and its factual findings. “The physical
findings at the crime scene, the testimony
at trial of the defendant, the trial testimony
of Hazel Show, the history of ill will
between the defendant and the victim and
the circumstantial evidence developed at
trial,” the Court held, “all lead to the
conclusion that defendant was guilty of
the murder of Laurie Show.” App. 1628-
29.
Further, the Court held that the
evidence that, according to Lambert,
tended to show she did not murder
Show—such as the 29 Questions—was
insufficient to create a reasonable doubt as
to her guilt. With respect to the 29
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
she argued that the Commonwealth had
failed to offer sufficient evidence for a
conviction.

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15
could not be fully and satisfactorily
explained does not mean that it created
reasonable doubt.” App. 1629-30.
Lambert subsequently obtained
new counsel and filed a second set of post-
verdict motions on October 3, 1994. She
based her request for relief on claims of
after-discovered evidence and her trial
counsel’s ineffectiveness.12 After holding
a hearing, Judge Stengel again denied
Lambert’s post-verdict motions in another
comprehensive opinion dated March 14,
1995.
In the decision, the Court
concluded that “[t]rial counsel’s
representation of Lisa Michelle Lambert
was professional, diligent, and
thoughtful.” App. 2076. With respect to
t h e a l l e g ed “ a f t e r - d i s c o v e r e d
e v i d e n c e ” — e v i d e n c e t h a t t h e
Commonwealth revoked Yunkin’s plea
agreement (in which he agreed to plead
guilty to hindering apprehension) and
Yunkin agreed to plead guilty to third
d e g r e e m u r d e r b e c a u s e t h e
Commonwealth determined that he was
not fully truthful at trial—the Court
explained:
This issue boils
down to whether Mr.
Yunkin’s testimony at the
Lambert trial was credible.
Mr. Yunkin testified that he
was not present in the Show
condominium at the time of
the killing. The testimony of
independent witnesses
would seem to establish that
he was truthful in this
regard. A manager at a
nearby McDonald’s saw
him at or about the time of
t h e m u r d e r , w h i c h
supported his story that he
dropped Ms. Lambert and
Ms. Buck off along the road
near the Show residence and
then went to McDonald’s
for breakfast.
Mr. Yunkin’s story
that he was not present at
the time of the killing was
also supported by the
neighbors who saw two
figures of about the same
height walking together
across a large grassy area
from the Show residence
toward the road. By height
and build they matched,
12 The trial court entertained
Lambert’s second post-verdict motion
because of a “loophole” that defense
counsel, the prosecution, and the Court
intentionally created to “accommodate”
Lambert. Specifically, the Court sentenced
Lambert only on the first degree murder
charge even though she had also been
convicted of criminal conspiracy. As a
result, the appeal period from a judgment
of conviction from the criminal conspiracy
charge had not expired. The parties (and
the Court) apparently agreed that this
allowed Lambert to introduce new
evidence and seek a new trial. See App.
2038; PCRA Decision 7 n.6.

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16
generally, a description of
Ms. Lambert and Ms. Buck.
Mr. Yunkin is significantly
taller than either of those
two women and the
witnesses testified that the
two figures seen walking
across the grassy area were
of about the same height,
that being in the 5'1" to 5'5"
range. Therefore, on the
subject of whether Mr.
Yunkin was in the Show
residence at the time of the
killing, Mr. Yunkin would
appear to have been
truthful. At least, his story
w a s s u p p o r t e d b y
independent witnesses.
App. 2073. Yet “[a]s to whether Mr.
Yunkin was aware of the plan to do harm
to Ms. Show,” the Court explained, “he
was decidedly incredible on this issue.”
Thus the Court held that the “after-
discovered” evidence (Yunkin’s plea to
third degree murder) would not have had
any material effect on the outcome of the
case because the facts adduced at trial
were fully consistent with his plea.
Lambert appealed from the
judgment denying her second set of post-
verdict motions. The Pennsylvania
Superior Court affirmed the trial court’s
judgment, and Lambert filed a petition
seeking allocatur from the Pennsylvania
Supreme Court. The Supreme Court
denied Lambert’s petition on July 2, 1996.
Lambert filed a pro se petition for
a writ of habeas corpus in federal district
court on September 12, 1996. The case
was assigned to Judge Dalzell, who
appointed counsel to represent Lambert
and directed counsel to file an amended
petition.
The subsequently-filed amended
petition advanced numerous grounds for
relief, including claims that Lambert had
not previously advanced in state court.
The Commonwealth objected to
Lambert’s petition, arguing that she had
failed to exhaust her state court remedies
and had committed insurmountable
procedural default.
J u d g e D a l z e l l d e f e r r e d
consideration of the Commonwealth’s
exhaustion argument while, in the
meantime, permitting broad discovery and
conducting a fourteen-day evidentiary
hearing. At the end of the hearing, the
District Court entered an order granting
Lambert’s petition for a writ of habeas
corpus, releasing Lambert from prison,
and barring the Commonwealth from
retrying her. In an Order and
Memorandum Opinion that it issued a few
weeks later, on April 21, 1997, the Court
offered several bases for its conclusion
that the habeas statute’s exhaustion
requirement did not preclude the Court
from granting Lambert’s petition. See
Lambert v. Blackwell, 962 F. Supp. 1521,
1553-55 (E.D. Pa. 1997).
This Court vacated the District
Court’s judgment, however, and found
that Lambert’s failure to exhaust available

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17
state court remedies required the District
Court to dismiss her petition without
prejudice. We held that Lambert had not
pursued her remedies under the PCRA for
some of her claims and her habeas petition
therefore contained both exhausted and
unexhausted claims. Thus the Supreme
Court’s decision in Rose v. Lundy, 455
U.S. 509 (1982), required the District
Court to dismiss such a “mixed petition.”
See Lambert v. Blackwell, 134 F.3d 506
(3d Cir. 1998).
Lambert filed a PCRA petition on
February 2, 1998 in the Court of Common
Pleas for Lancaster County.13 Lambert
presented 257 claims for relief in the
PCRA Court: 157 allegations of
prosecutorial misconduct, 72 allegations
of after-discovered evidence, and 28
allegations of ineffective assistance of
counsel. The PCRA Court held eight
weeks of hearings and, on August 24,
1998, issued a 322-page opinion in which
it denied Lambert’s petition for relief.
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
306 (Pa. Super. 2000). Before addressing
the merits of Lambert’s appeal, however,
the Superior Court raised sua sponte the
timeliness of Lambert’s PCRA petition.
The PCRA requires petitions to be
filed “within one year of the date the
judgment becomes final,” except in certain
statutorily defined circumstances. See 42
Pa. Cons. Stat. § 9545(b). Lambert filed
her petition approximately sixteen months
after her judgment of conviction became
final. It appears that the parties did not
raise the statute of limitations as an issue
in front of the PCRA Court, however, and
the Court did not address it.
The Superior Court determined
that, based largely on the Pennsylvania
Supreme Court’s interpretation of the
PCRA in Commonwealth v. Fahy, 737
A.2d 214 (1999), Lambert’s PCRA
petition was untimely.14 The Superior
Court decided to review the merits of the
PCRA Court’s decision, however, because
“the Third Circuit Court of Appeals, the
PCRA court, the Commonwealth and
counsel did not have the benefit of” the
Pennsylvania Supreme Court’s decision in
Fahy (which was decided on August 27,
1999, about a year after the PCRA Court
13 The Court of Common Pleas
Judge who presided over the 1992 bench
trial, Judge Lawrence Stengel, also
presided over the PCRA proceedings.
14 We opined in our decision
directing the District Court to dismiss
Lambert’s petition without prejudice that
Lambert’s PCRA petition could be timely
for either of two reasons—by operation of
Pennsylvania’s transfer statute, 42 Pa.
C.S.A. § 5103, or any of the three
statutory exceptions to the PCRA’s statute
of limitations, 42 Pa. C.S.A. § 9545(b)(1).
See 134 F.3d at 522-24. The Superior
Court rejected each of these possibilities.

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

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19
Cepero, 224 F.3d 256, 261-62 (3d Cir.
2000) (en banc).16
A COA may issue only upon “a
substantial showing of the denial of a
constitutional right.” 28 U .S.C. §
2253(c)(2). If “a district court has rejected
the constitutional claims on the merits, the
showing required to satisfy § 2253(c) is
straightforward: The petitioner must
demonstrate that reasonable jurists would
find the district court’s assessment of the
constitutional claims debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484
(2000). In addition, a COA must “indicate
which specific issue or issues satisfy” that
standard. 28 U.S.C. § 2253(c)(3).
Here, the District Court failed to
specify which of the voluminous issues
Lambert raised in her habeas petition
satisfy the standard for issuance of a COA.
The Court concluded: “Although in very
different contexts, two federal judges have
examined the claims of the petitioner
Lambert and have reached different
outcomes. Accordingly, a COA will be
GRANTED.” Lambert v. Blackwell, 2003
WL 1718511, at *56 (E.D. Pa. April 1,
2003).
In the ordinary course, we would
remand to the District Court to clarify its
order to comply with the specificity
requirements of 28 U.S.C. § 2253(c)(3).
See Szuchon v. Lehman, 273 F.3d 299,
311 n.5 (3d Cir. 2001). Where the parties
have fully briefed the substantive issues
before bringing to our attention that the
COA was inadequately specific, however,
this Court has viewed the District Court’s
certificate as a nullity and construed the
petitioner’s notice of appeal as a request
for us to issue a COA. Id. We follow that
course here.
Lambert has raised several issues
on appeal. On each issue, two federal
district court judges—albeit in different
procedural postures—reached differing
conclusions as to whether constitutional
error at trial warranted granting habeas
relief. As to each of these issues, which we
discuss seriatim below, we will grant a
COA. Because the District Court relied
exclusively on the state court record and
did not hold an evidentiary hearing, our
review is plenary. See Moore v. Morton,
255 F.3d 95, 103 (3d Cir. 2001).
III. DISCUSSION
Lambert and the Commonwealth
raise numerous issues in their cross-
appeals and offer several arguments, often
in the alternative, supporting their
respective positions. We first address the
Commonwealth’s arguments that we
16 Only Lambert’s appeal must
satisfy the certificate of appealability
standard. See Fed. R. App. P. 22(b)(3) (“A
certificate of appealability is not required
when a state or its representative
appeals.”); Lambert v. Blackwell, 134
F.3d at 512 n.15. We exercise jurisdiction
over the Commonwealth’s cross-appeal
under 28 U.S.C. §§ 1291 and 2253. The
Commonwealth challenges certain of the
District Court’s legal conclusions, over
which we exercise plenary review. Id. at
512.

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20
cannot reach the merits of Lambert’s
claims and must dismiss her petition for
procedural reasons. We have already
rejected one of those arguments, that we
lack jurisdiction because Lambert’s claims
do not warrant the issuance of a certificate
of appealability. For the reasons explained
b e l o w , w e a l s o r e j e c t t h e
Commonwealth’s argument that Lambert
failed to exhaust her available state
remedies because she did not seek
allocatur from the Pennsylvania Supreme
Court to appeal from the Superior Court’s
judgment affirming the PCRA Court’s
dismissal of her PCRA petition.17
We next address Lambert’s
arguments regarding the amount of
deference we must afford the state courts’
determinations in the PCRA proceedings.
We conclude that we must defer to the
state courts’ determinations, and we apply
that deference to Lambert’s claims.
A. Exhaustion
A state prisoner must exhaust his
state court remedies before a federal court
may grant him habeas relief. The Supreme
Court first articulated this requirement in
Ex parte Royall, 117 U.S. 241 (1886), and
it is now codified at 28 U.S.C. §
2254(b)(1). That provision states:
(b)(1) An application for a
writ of habeas corpus on
behalf of a person in
custody pursuant to the
judgment of a State court
shall not be granted unless it
appears that—
(A) the applicant has
exhausted the remedies
available in the courts of the
State; or
(B)(i) there is an absence of
available State corrective
process; or
(ii) circumstances exist that render such
process ineffective to protect the rights of
the applicant.
28 U.S.C. § 2254(b)(1). The statute
further provides that “[a]n applicant shall
not be deemed to have exhausted the
remedies available in the courts of the
State, within the meaning of this section,
if he has the right under the law of the
State to raise, by any available procedure,
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,
we must dismiss her petition as untimely.
As we describe below, we find that the
PCRA proceedings are not null and void.
The Commonwealth’s timeliness
argument is therefore moot and we need
not address it.
18 Yet “[a]n application for a writ of
habeas corpus may be denied on the
merits, notwithstanding the failure of the
applicant to exhaust the remedies available
in the courts of the State.” 28 U.S.C. §
2254(b)(2).

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21
The exhaustion doctrine “turns on
an inquiry into what procedures are
‘available’ under state law.” O’Sullivan v.
Boerckel, 526 U.S. 838, 847 (1999). And
the Supreme Court has declined to
interpret the “any available procedure”
language of § 2254(c) to require “a state
prisoner to invoke any possible avenue of
state court review.” Id. at 844 (emphasis in
original). Thus “state prisoners do not
have to invoke extraordinary remedies
when those remedies are alternatives to the
standard review process and where the
state courts have not provided relief
through those remedies in the past.” Id.
(citing Wilwording v. Swenson, 404 U.S.
249, 249-50 (1971) (per curiam)).
“Section 2254(c) requires only that state
prisoners give state courts a fair
opportunity to act on their claims.” Id.
(emphasis in original).
In O’Sullivan, the Supreme Court
held that a petitioner must seek review in
the Illinois Supreme Court in order to
satisfy the exhaustion requirement even
though the court’s review is discretionary.
The Court found that review in the Illinois
Supreme Court was a “normal, simple, and
established part of the State’s appellate
review process.” 526 U.S. at 845. As a
result, the petitioner had to seek review in
order to give the state courts a “full
opportunity to resolve any constitutional
claims.” Id. In other words, “the creation
of a discretionary review system does not,
without more, make review in the Illinois
Supreme Court unavailable.” Id. at 848.
The Court took pains, however, to
state that “there is nothing in the
exhaustion doctrine requiring federal
courts to ignore a state law or rule
providing that a given procedure is not
available.” Id. at 847-48. Justice Souter
interpreted this statement as leaving
open the possibility that a
state prisoner is [] free to
skip a procedure even when
a s t a t e c o u r t h a s
occasionally employed it to
provide relief, so long as the
State has identified the
procedure as outside the
standard review process and
has plainly said that it need
not be sought for the
purpose of exhaustion. It is
not obvious that either
comity or precedent requires
otherwise.
Id. at 850 (Souter, J., concurring); see also
id. at 861 (Stevens, J., dissenting); id. at
864 (Breyer, J., dissenting). As an
example, Justice Souter pointed to the
following pronouncement from the South
Carolina Supreme Court:
[I]n all appeals from
criminal convictions or
post-conviction relief
matters, a litigant shall not
be required to petition for
rehearing and certiorari
following an adverse
decision of the Court of
Appeals in order to be
deemed to have exhausted
all available state remedies
respecting a claim of error.

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22
Rather, when the claim has
been presented to the Court
of Appeals or the Supreme
Court, and relief has been
denied, the litigant shall be
deemed to have exhausted
all available state remedies.
In re Exhaustion of State Remedies in
Criminal and Post-Conviction Relief
Cases, 471 S.E.2d 454 (S.C. 1990).
The Pennsylvania Supreme Court,
apparently taking its cue from Justice
Souter’s concurrence, issued the following
order on May 9, 2000:
[W]e hereby recognize that
the Superior Court of
Penn syl vania reviews
criminal as well as civil
appeals. Further, review of a
final order of the Superior
Court is not a matter of
right, but of sound judicial
discretion, and an appeal to
this court will be allowed
only when there are special
and important reasons
therefor. Pa.R.A.P. 1114.
F u r t h e r , w e h e r e b y
recognize that criminal and
post-conviction relief
litigants have petitioned and
do routinely petition this
Court for allowance of
appeal upon Superior
Court's denial of relief in
order to exhaust all
available state remedies for
purposes of federal habeas
corpus relief.
In recognition of the above,
we hereby declare that in all
appeals from criminal
convic tions or post -
conviction relief matters, a
litigant shall not be required
to petition for rehearing or
allowance of appeal
following an adverse
decision by the Superior
Court in order to be deemed
to have exhausted all
available state remedies
respecting a claim of error.
When a claim has been
denied relief in a final order,
the litigant shall be deemed
to have exhausted all
available state remedies for
purposes of federal habeas
corpus relief. This Order
s h a l l b e e f f e c t i v e
immediately.
In re Exhaustion of State Remedies in
Criminal and Post-Conviction Relief
Cases, No. 218 Judicial Administration
Docket No. 1 (Pa. May 9, 2000) (“Order
No. 218”). Several Pennsylvania district
courts have held that due to Order No. 218
a state prisoner need not petition the
Pennsylvania Supreme Court for allocatur
in order to exhaust state court remedies
and seek habeas relief in federal court. See
Wilson v. Vaughn, 304 F. Supp. 2d 652
(E.D. Pa. 2004); Lor v. Varner, 2003 WL
22845413 (E.D. Pa. Nov. 26, 2003);
Lambert v. Blackwell, 2003 WL 1718511

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23
(E.D. Pa. April 1, 2003); Leon v. Benning,
2003 WL 21294901 (E.D. Pa. Feb. 24,
2003); Mattis v. Vaughn, 128 F. Supp. 2d
249 (E.D. Pa. 2001); Blasi v. Attorney
General, 120 F. Supp. 2d 249 (M.D. Pa.
2000). Other Circuits have reached similar
conclusions with regard to comparable
state supreme court rules. See Adams v.
Holland, 330 F.3d 398, 401-02 (6th Cir.
2003) (Tennessee); Randolph v. Kemna,
276 F.3d 401, 404 (8th Cir. 2002)
(Missouri); Swoopes v. Sublett, 196 F.3d
1008, 1009-10 (9th Cir. 1999) (per curiam)
(Arizona). We reserved judgment on this
issue in Wenger v. Frank, 266 F.3d 218,
217-218 (3d Cir. 2001) and Villot v.
Varner, 373 F.3d 327, 338 n.14 (3d Cir.
2004). We now hold that Order No. 218
renders review from the Pennsylvania
Supreme Court “unavailable” for purposes
of exhausting state court remedies under §
2254(c).
Order No. 218 serves to remove
review of criminal and collateral appeals
from the “normal” and “established”
appellate review procedure in
Pennsylvania. As Judge Van Antwerpen
put it in Mattis v. Vaughn, Order No. 218
is the something “more” that makes the
Pennsylvania Supreme Cou rt’ s
discretionary review system “unavailable.”
128 F. Supp. 2d at 259. Consequently,
petitioners need not seek review from the
Pennsylvania Supreme Court in order to
give the Pennsylvania courts a “full
opportunity to resolve any constitutional
claims.”
Here, the Superior Court affirmed
the PCRA Court’s judgment on December
18, 2000. During the pendency of
Lambert’s appeal in the Superior Court,
the Pennsylvania Supreme Court issued
Order No. 218. Consequently, she did not
seek an allowance of an appeal from the
Pennsylvania Supreme Court within the
necessary thirty-day time period. Instead,
she filed a federal habeas petition on
January 29, 2001. We conclude that, due
to Order No 218, Lambert exhausted her
available state court remedies.
B. Deference
AEDPA requires federal courts
collaterally reviewing state proceedings to
afford considerable deference to state
courts’ legal and factual determinations.
Specifically, it provides:
(d) An application for a writ
of habeas corpus on behalf
of a person in custody
pursuant to the judgment of
a State court shall not be
granted with respect to any
claim that was adjudicated
on the merits in State court
proceedings unless the
adjudication of the claim—
(1) resulted in a decision
that was contrary to, or
involved an unreasonable
application of, clearly
established Federal law, as
determined by the Supreme
Court of the United States;
or
(2) resulted in a decision
that was based on an

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24
unreasonable determination
of the facts in light of the
evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). In addition,“a
determination of a factual issue made by a
State court shall be presumed to be
correct” unless the petitioner rebuts “the
presumption of correctness by clear and
convincing evidence.” 28 U.S.C. §
2254(e)(1).
The Supreme Court interpreted §
2254(d)(1)’s deference to state legal
determinations in Williams v. Taylor, 529
U.S. 362 (2000). The Court interpreted
AEDPA’s “clearly established Federal
law, as determined by the Supreme Court
of the United States” to mean “the
holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time
of the relevant state-court decision.” Id. at
412. A state-court decision is “contrary to”
clearly established federal law if the state
court (1) “contradicts the governing law
set forth in [the Supreme] Court’s cases”’
or (2) “confronts a set of facts that are
materially indistinguishable from a
decision of [the Supreme] Court and
nevertheless arrives at a [different] result.”
Id. at 405-06. A state-court decision
“involve[s] an unreasonable application”
of clearly established federal law if the
state court (1) “identifies the correct
governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it
to the facts of the particular . . . case”; or
(2) “unreasonably extends a legal principle
from [Supreme Court] precedent to a new
context where it should not apply or
unreasonably refuses to extend that
principle to a new context where it should
apply.” Id. at 407.
The Supreme Court addressed
AEDPA’s factual review provisions in
Miller-El v. Cockrell. There, the Supreme
Court interpreted § 2254(d)(2) to mean
that “a decision adjudicated on the merits
in a state court and based on a factual
determination will not be overturned on
factual grounds unless objectively
unreasonable in light of the evidence
presented in the state-court proceeding.”
537 U.S. 322, 340 (2003). Yet “deference
does not imply abandonment or abdication
of judicial review.” Id. In other words,
“[d]eference does not by definition
preclude relief.” Id. Thus a federal habeas
court can “disagree with a state court’s
credibility determination.” Id.; see also
Wiggins v. Smith, 539 U.S. 519, 123 S. Ct.
2527, 2539 (2003) (rejecting state court’s
factual determination under § 2254(e)(1)
and 2254(d)(2)).
Despite the Supreme Court’s
pronouncements in Miller-El and Wiggins,
a comprehensive interpretation of
AEDPA’s factual review scheme has yet to
emerge from the fede ral cou rts.
Specifically, the relationship between the
standards enunciated in § 2254(d)(2) and §
2254(e)(1) remains unclear. See Green v.
White, 232 F.3d 671, 672 n.3 (9th Cir.
2000).
On their face, we discern little
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
reasonableness determination and a
presumption of correctness as they express

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25
the same fundamental principle of
deference to state court findings. Courts
have tended to lump the two provisions
together as generally indicative of the
deference AEDPA requires of state court
factual determinations. See, e.g., Martini v.
Hendricks, 348 F.3d 360, 363 (3d Cir.
2003); Hunterson v. DiSabato, 308 F.3d
236, 245-46, 249-50 (3d Cir. 2002). Yet it
is a cardinal rule of statutory interpretation
that we must “give effect, if possible, to
every clause and word of a statute.”
Williams v. Taylor, 529 U.S. at 404
(internal citations and quotations omitted);
see also Kungys v. United States, 485 U.S.
759, 778 (1988) (Scalia, J., plurality
opinion); Borman v. Raymark Indus., Inc.,
946 F.2d 1031, 1035 (3d Cir. 1991) (“It is
an ‘elementary canon of construction that
a statute should be interpreted so as not to
render one part inoperative.’”) (quoting
Colautti v. Franklin, 439 U.S. 379, 392
(1979)). In fact, the language of §
2254(d)(2) and § 2254(e)(1) implies an
important distinction: § 2254(d)(2)’s
reasonableness determination turns on a
consideration of the totality of the
“evidence presented in the state-court
proceed ing ,” while § 2254 (e)(1)
contemplates a challenge to the state
court’s individual factual determinations,
including a challenge based wholly or in
part on evidence outside the state trial
record. See generally Taylor v. Maddox,
366 F.3d 992, 999-1000 (9th Cir. 2004);
Valdez v. Cockrell, 274 F.3d 941, 951
n.17 (5th Cir. 2001).
We therefore read § 2254(d)(2) and
§ 2254(e)(1) together as addressing two
somewhat diff eren t inquiries. The
fundamental prerequisite to granting the
writ on factual grounds is consideration of
the evidence relied upon in the state court
proceeding. Section 2254(d)(2) mandates
the federal habeas court to assess whether
the state court’s determination was
reasonable or unreasonable given that
evidence. If the state court’s decision
based on such a determination is
unreasonable in light of the evidence
presented in the state court proceeding,
habeas relief is warranted.
Within this overarching standard, of
course, a petitioner may attack specific
factual determinations that were made by
the state court, and that are subsidiary to
the ultimate decision. Here, section
2254(e)(1) comes into play, instructing
that the state court’s determination must be
afforded a presumption of correctness that
the petitioner can rebut only by clear and
convincing evidence. In this inquiry, a
petitioner may develop clear and
convincing evidence by way of a hearing
in federal court as long as he satisfies the
necessary prerequisites. See 28 U.S.C. §
2254(e)(2). In the final analysis however,
even if a state court’s individual factual
determinations are overturned, what
factual findings remain to support the state
court decision must still be weighed under
the overarching standard of section
2254(d)(2).19
19 The two circuits that have
considered the interplay between section
2254(d)(2) and (e)(1) have intimated two
slightly different approaches to resolving

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26
With these principles in mind, we
turn to the specifics of this case. Lambert
argues that we should not afford the
PCRA Court and Superior Court factual
determinations the deference set forth in §
2254(d) and § 2254(e)(1), for two reasons.
First, she argues that the PCRA Court and
Superior Court decisions are null and
void—and therefore not entitled to
deference—because those courts lacked
jurisdiction to entertain her untimely
PCRA petition.20 See Commonwealth v.
questions under the respective provisions.
In Valdez v. Cockrell, the Fifth Circuit
suggested that individual factual
challenges should be evaluated under
(e)(1) first, and then, after they are
resolved, the habeas court should consider
the entirety of the record under (d)(2). 274
F.3d at 951 n.17. Somewhat more
explicitly, the Ninth Circuit has said that
the habeas court should evaluate the
totality of the record first under (d)(2),
and, if it survives, cloak the state court’s
decision with a presumption of correctness
to “steel” it against challenges based on
new evidence, extrinsic to the state court
record.
We adopt no rigid approach to
habeas review of state fact-finding. In
some circumstances, a federal court may
wish to consider subsidiary challenges to
individual fact-finding in the first instance
applying the presumption of correctness as
instructed by (e)(1). Then, after deciding
these challenges, the court will view the
record under (d)(2) in light of its
subsidiary decisions on the individual
challenges. In other instances, a federal
court could conclude that even if
petitioner prevailed on all of his individual
factual challenges notwithstanding the
(e)(1) presumption of their correctness, the
remaining record might still uphold the
state court’s decision under the
overarching standard of (d)(2). In that
event, presumably the (d)(2) inquiry
would come first.
Whatever the order of inquiry,
however, two points are paramount. First,
both (d)(2) and (e)(1) express the same
fundamental principle of deference to state
court findings. Second, before the writ can
be granted, petitioner must show an
unreasonable determination -- under (d)(2)
-- in light of the entire record in the
original state court trial.
20 Lambert also argues that the law
of the case doctrine required Judge Brody
to adhere to Judge Dalzell’s decision that
the state court proceedings were null and
void. “The law of the case doctrine limits
the extent to which an issue will be
reconsidered once the court has made a
ruling on it.” Fagan v. City of Vineland, 22
F.3d 1283, 1290 (3d Cir. 1994). “A court
has the power to revisit prior decisions of
its own or of a coordinate court in any
circumstance, although as a rule courts
should be loathe to do so in the absence of
extraordinary circumstances such as where
the initial decision was ‘clearly erroneous
and would work a manifest injustice.’”

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27
Fahy, 737 A.2d 214 (1999). Second,
Lambert argues that the PCRA Court’s
factual determinations are not entitled to
deference because the Court prohibited
her from cross-examining witnesses at the
PCRA hearing.21
On its face, AEDPA does not
provide that a federal habeas court should,
before affording deference to state court
determinations, evaluate the procedural
adequacy of state court proceedings or
whether the state court/ properly exercised
its jurisdiction. This omission is
particularly conspicuous in light of the
pre-AEDPA federal habeas statute.
Before AEDPA amended the
federal habeas statute in 1996, state court
findings of fact were “presumed correct if
there was (1) a hearing on the merits of a
factual issue, (2) made by a state court of
competent jurisdiction, (3) in a proceeding
to which the petitioner and the state were
parties, (4) and the state court’s
determination is evidenced by a written
finding, opinion, or other reliable and
adequate indicia.” Carpenter v. Vaughn,
296 F.3d 138, 149 (3d Cir. 2002). This
presumption did not apply if the petitioner
established, inter alia, that (i) “the
factfinding procedure employed by the
State court was not adequate to afford a
full and fair hearing,” 28 U.S.C. §
2254(d)(2) (1994) (superseded); or (ii)
“the State court lacked jurisdiction of the
subject matter or over the person of the
applicant in the State court proceeding,”
28 U.S.C . § 2254(d )(4) (1994)
(superseded).22
Christianson v. Colt Industries Operating
Corp., 486 U.S. 800, 817 (1988) (quoting
Arizona v. California, 460 U.S. 605, 618 n.
8 (1983)). In other words, the law of the
case doctrine does not limit a federal
court’s power, rather it directs its exercise
of discretion. Public Interest Research
Group of New Jersey, Inc. v. Magnesium
Elektron, Inc., 123 F.3d 111, 116 (3d Cir.
1997).
Lambert’s argument that the
District Court abused its discretion need
not detain us long. “[A] district court's
adherence to law of the case cannot
insulate an issue from appellate review.”
Christianson, 486 U.S. at 817. Conversely,
a district court’s decision not to adhere to
a coordinate court’s previous decision
cannot prevent us from deciding the issue
on the merits. Whether the District Court
followed the first habeas court’s ruling or
came to its own contrary conclusion (as it
did), we would still have to determine
what the correct decision is. See
Tischmann v. ITT/Sheraton Corp., 145
F.3d 561, 564-65 (2d Cir. 1998). The law
of the case doctrine is irrelevant to our
decision. What matter are the merits.
21 Lambert does not argue that we
should not afford deference to Judge
Stengel’s findings made at the trial level.
Her jurisdiction and cross-examination
arguments, of course, do not apply to
those findings.
2 2 The pre-AEDPA statute
provided, in relevant part:

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28
(d) In any proceeding
instituted in a Federal court
by an application for a writ
of habeas corpus by a
person in custody pursuant
to the judgment of a State
court, a determination after
a hearing on the merits of a
factual issue, made by a
State court of competent
jurisdiction in a proceeding
to which the applicant for
the writ and the State or an
officer or agent thereof were
parties, evidenced by a
written finding, written
opinion, or other reliable
a n d a d e q u at e w r itten
indicia, shall be presumed to
be correct, unless the
applicant shall establish or it
shall otherwise appear, or
the respondent shall admit—
(1) that the merits of the
factual dispute were not
resolved in the State court
hearing;
(2) that the factfinding
procedure employed by the
State court was not adequate
to afford a full and fair
hearing;
(3) that the material facts
w e r e n o t a d e q u a t e ly
developed at the State court
hearing;
(4) that the State court
lacked jurisdiction of the
subject matter or over the
person of the applicant in
the State court proceeding;
(5) that the applicant was an
indigent and the State court,
in deprivation of his
constitutional right, failed to
appoint counsel to represent
him in the State court
proceeding;
(6) that the applicant did not
receive a full, fair, and
adequate hearing in the
State court proceeding; or
(7) that the applicant was
o t h e rwise denied du e
process of law in the State
court proceeding;
(8) or unless that part of the
record of the State court
proceeding in which the
determination of such
factual issue was made,
pertinent to a determination
of the sufficiency of the
evidence to support such
factual determination, is
produced as provided for
hereinafter, and the Federal
court on a consideration of
such part of the record as a
whole concludes that such
factual determination is not
fairly supported by the

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29
The current statute simply states
that federal courts must defer to legal and
factual determinations “with respect to any
claim that was adjudicated on the merits in
State court proceedings.” 28 U.S.C. §
2254(d). “We have interpreted § 2254(d)’s
‘adjudication on the merits’ language to
mean that ‘when, although properly
preserved by the defendant, the state court
has not reached the merits of a claim
thereafter presented to a federal habeas
court, the deferential standards provided
by AEDPA . . . do not apply.” Holloway v.
Horn, 355 F.3d 707, 718 (3d Cir. 2004)
(quoting Appel v. Horn, 250 F.3d 203,
210 (3d Cir. 2001)).
AEDPA has changed the
procedural framework for deference in
three ways. First, AEDPA now requires
federal courts to defer to state court legal
determinations, whereas federal courts
used to review state legal determinations
de novo. See, e.g., Ahmad v. Redman, 782
F.2d 409, 412 (3d Cir. 1986). Second, the
habeas statute no longer explicitly
conditions federal deference to state court
factual findings on whether the state court
held a hearing. See Mendiola v. Schomig,
224 F.3d 589, 592-93 (7th Cir. 2000).
Third, the statute no longer contains the
eight prerequisites to deference that
appeared in the superseded §§ 2254(d)(1)-
(8). See Valdez v. Cockrell, 274 F.3d at
951 (holding that a “full and fair hearing”
is not a precondition to according
2254(e)(1)’s presumption of correctness to
a state habeas court’s findings of fact); but
see Valdez v. Cockrell, 274 F.3d at 966
(Dennis, J., dissenting); 17A Charles A.
Wright & Arthur R. Miller, Federal
Practice and Procedure § 4265.2 (2d ed.
1994) (“Indeed the new statute does not
even require that the state court that made
the determination have been a court of
competent jurisdiction. Presumably the
courts will continue to insist on that and it
is likely that some of the other elements
record.
And in an evidentiary
hearing in the proceeding in
the Federal court, when due
proof of such factual
determination has been
made, unless the existence
of one or more of the
circumstances respectively
set forth in paragraphs
numbered (1) to (7),
inclusive, is shown by the
a p p l i c a n t , o t h e r w i s e
appears, or is admitted by
the respondent, or unless the
court concludes pursuant to
the provisions of paragraph
numbered (8) that the record
i n t h e S t a t e c o u r t
proceeding, considered as a
whole, does not fairly
s u p p o r t s u c h f a c tu a l
determination, the burden
shall rest upon the applicant
to establish by convincing
evidence that the factual
determination by the State
court was erroneous.
28 U.S.C. § 2254(d) (1994) (superseded).

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30
that were in the old statute but not in the
new one will be read back into it by the
courts.”).
On its face, therefore, the amended
habeas statute appears to obviate any need
to consider Lambert’s jurisdictional and
procedural arguments against our deferring
to the PCRA Court’s determinations;
AEDPA eliminated the threshold language
eliminating the presumption of correctness
when “the State court lacked jurisdiction”
or “the factfinding procedure employed by
the State court was not adequate to afford
a full and fair hearing.” We decline to
conclude, however, that state court
jurisdiction or procedures are entirely
irrelevant in a federal court’s habeas
review of state court determinations.
Even under AEDPA, federal courts
are to defer regarding claims “adjudicated
on the merits in State court proceedings.”
This implies that the claim must be
adjudicated by a court of competent
jurisdiction, as opposed to a kangaroo
court or an administrative body
masquerading as a court. At the same time,
however, AEDPA’s amendments to the
habeas statute surely lower the level of
scrutiny a federal court is entitled to apply
to the issue of state court jurisdiction. For
purposes of applying deference under
section 2254(d) and (e), when a valid state
court judgment exists a federal habeas
court should generally presume that the
state court properly exercised its
jurisdiction.23
Similarly, the procedures a state
court applies when adjudicating a
petitioner’s claims may also be relevant
during habeas review. The extent to which
a state court afforded a defendant adequate
procedural means to develop a factual
record—whether the defendant was
afforded a “full and fair hearing,” to put it
in the parlance of the pre-AEDPA
statute—may well affect whether a state
court’s factual determination was
“reasonable” in “light of the evidence
presented in the State court proceeding” or
whether the petitioner has adequately
rebutted a presumption that the state
court’s determination is correct. See
Taylor v. Maddox, 366 F.3d 992, 1000-01
(9th Cir. 2004); cf. Valdez v. Cockrell, 274
23 This is somewhat different than
the level of scrutiny we apply to state
jurisdictional questions in the context of
determining whether there is an adequate
and independent procedural bar to federal
habeas relief. See, e.g. Hull v. Kyler, 190
F.3d 88, 100-03 (3d Cir. 1999). The
Supreme Court has specifically delineated
the role of a federal habeas court in
assessing whether a state court decision
rests on an independent procedural bar.
See Coleman v. Thompson, 501 U.S. 722
(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.

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31
F.3d at 951 n.17; Mendiola, 224 F.3d at
592 (“If a state court’s finding rests on
thin air, the petitioner will have little
difficulty satisfying the standards for relief
under § 2254”); Weaver v. Thompson,
197 F.3d 359, 363 (9th Cir. 1999)
(statements in the trial judge’s letter were
not “factual determinations” because they
were not “subject to any of the usual
judicial procedures designed to ensure
accuracy”). In other words, the extent to
which a state court provides a “full and
fair hearing” is no longer a threshold
requirement before deference applies; but
it might be a consideration while applying
deference under § 2254(d)(2) and §
2254(e)(1).
We need not comprehensively or
exhaustively address how deeply a federal
habeas court may plumb the adequacy of
state court jurisdiction and procedures in
deciding how to apply section 2254(d) and
(e)(2). We conclude in the particular
circumstances of this case that no
jurisdictional concerns obviate the
application of AEDPA’s deferential
scheme of review. Nor do any procedural
issues lower the level of deference we
must afford.
First, the Pennsylvania courts
affirmatively exercised jurisdiction over
Lambert’s PCRA petition. Judge Dalzell
concluded that the PCRA Court and
Superior Court lacked jurisdiction under
Pennsylvania law and that, under
Pennsylvania law, “‘[w]here a court lacks
jurisdiction in a case, any judgment
regarding the case is void.’” Lambert v.
Blackwell, 175 F. Supp. 2d at 787 (quoting
Rieser v. Glukowsky, 690 A.2d 742 (Pa.
Super. 1997)). But after AEDPA
e l i m in a t e d j ur isd ict io na lly- b a s e d
challenges to state court decisions, a
federal habeas court has at most a
circumscribed role in reviewing whether a
state court properly applied its own law
when it explicitly decided to exercise
jurisdiction.24
24 “The United States Supreme
Court has repeatedly declared that, in a
federal habeas proceeding such as this,
‘state courts are the ultimate expositors of
state law . . . and we are bound by their
c o n s t r u c t i o n s e x c e p t i n r a r e
circumstances.’” Humanik v. Beyer, 871
F.2d 432, 436 (3d Cir. 1989) (quoting
Mullaney v. Wilber, 421 U.S. 684, 691
(1975)). We reiterated this point in
Johnson v. Rosemeyer, where we
summarized our precedent as counseling
that “a federal court in a habeas case must
be most circumspect in re-examining state
court decisio ns,” and “onl y in
extraordinary circumstances should a
federal district court in a habeas corpus
case decline to follow the opinions of a
state intermediate court of appeal with
respect to state law rendered in earlier
proceedings involving the petitioner.” 117
F.3d 104, 114-15 (3d Cir. 1997); see also
Poe v. Caspari, 39 F.3d 204, 207 (8th Cir.
1994) (“Jurisdiction is no exception to the
general rule that federal courts will not
engage in collateral review of state court
decisions based on state law.”). Of course,
in Humanik, Barry, Rosemeyer, and Poe,
the state court determinations of state law

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32
To be sure, the Superior Court’s
decision appears to be internally
contradictory. The Court determined that
Lambert’s PCRA petition was untimely
and the PCRA Court had “no jurisdiction
to address the substantive merits of the
petition.” Commonwealth v. Lambert, 765
A.2d at 319. Yet the Court decided to
entertain Lambert’s appeal and review the
PCRA Court’s judgment. Id. at 322-23.
That decision was motivated in part by a
recognition that the Pennsylvania Supreme
Court decision in Commonwealth v. Fahy,
supra, that established a jurisdictional bar
to untimely PCRA filings did not issue
until after Lambert had filed her PCRA
application. In other words, the Superior
Court effectively determined to carve out
an exception to Fahy’s retroactive
application, at least in the somewhat
unusual circumstances of Lambert’s case.
765 A.2d at 322-23. A federal court will
normally defer to a state court’s decision
about retroactivity of state decisions.
See Fiore v. White, 531 U.S. 225 (2001).
In short, the Superior Court decided
to retain and exercise jurisdiction. The
Superior Court’s opinion concluded by
stating: “Based upon the foregoing, we
hold that Appellant has not met her burden
under the PCRA statute. Accordingly, we
affirm the PCRA court's order denying
Appellant the collateral relief she
requested. Order affirmed.” Id. at 363.
Whatever our residual ability to examine
state court jurisdiction in other instances,
the exercise of jurisdiction by the state
court in this instance does not call into
question that adequacy of the state court
proceeding under section 2254(d) and
(e).25
We turn to Lambert’s second
argument. Several prosecutorial and law
enforcement witnesses, who Lambert
alleges engaged in extensive misconduct,
testified at the PCRA hearing. Lambert
argues that the PCRA Court refused to
“allow Lambert to cross-examine the
perpetrators of the prosecutorial
misconduct.” Lambert Br. 34. She
went to the merits of the petitioners’
habeas claims. Here, the Superior Court’s
determination of state law regards whether
as a jurisdictional matter state courts could
entertain Lambert’s claims on collateral
review. See note 23, supra.
25 Our decision in In re James, 940
F.2d 46 (3d Cir. 1991), which Lambert
cites in her brief, does not persuade us
otherwise. There, we held that a federal
court may vacate a state court decision
when the state court acts in violation of the
federal bankruptcy statute’s automatic stay
provisions. See Raymark Indus., Inc. v.
Lai, 973 F.2d 1225, 1132 (3d Cir. 1992)
(construing In re James). We reached that
conclusion because an automatic stay
obviates the state court’s jurisdiction and
renders its decision void ab initio. In re
James differs from this case (and most
cases) because the state court’s
jurisdiction, or lack thereof, was a function
of federal law (the federal bankruptcy
statute). Here, in contrast, the PCRA
Court’s jurisdiction is a matter of state
law.

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33
contends that the PCRA Court’s
credibility determination are not worthy of
d e f e r e n c e because “credib ilit y
determinations of witnesses who are never
subjected to the crucible of cross-
examination are not entitled to deference.”
Id. She cites cases standing for the
proposition that cross-examination
provides “the principal means by which
the believability of a witness and the truth
of his testimony are tested.” Davis v.
Alaska, 415 U.S. 308, 316 (1974).
We find Lambert’s argument, as
she frames it, extremely misleading.
Cross-examination is “[t]he questioning of
a witness at a trial or hearing by the party
opposed to the party who called the
witness to testify.” Black’s Law Dictionary
383 (7th ed. 1999). (emphasis added). The
PCRA Court did not preclude Lambert
from cross-examining any witnesses.
Rather, the Court applied Pennsylvania
law on evidence and, except for one
instance, did not allow Lambert to ask
leading questions to the witnesses she
called on direct examination. PCRA Court
Decision 47-59. Lambert does not
complain that she was not allowed to
cross-examine Commonwealth witnesses.
More importantly, however, the
fact-finding process was not inexorably
undermined by the PCRA Court’s
evidentiary determination. We have
extensively reviewed the record of the
PCRA hearing. The PCRA Court’s
decision not to allow Lambert to ask
leading questions of witnesses she called
on direct examination in no way impugns
the Court’s factual determinations.26 That
26 We concur in the following
observations of the Pennsylvania Superior
Court:
[ T ] h e P C R A c o u r t
permitted counsel to defend
Appellant's rights with zeal,
bringing to the attention of
the court all of the errors
that, according to Appellant,
caused her an unfair trial.
The PCRA court allowed
her to reiterate her claims
and explore every avenue
for relief. The PCRA court
demonstrated remarkable
patience and thoroughness
throughout the proceedings,
which provided for review
on appeal over eight
thousand pages of testimony
from trial and the PCRA
hearing, along with other
filings, as well as the PCRA
court's three hundred and
twenty (320) page main
opinion.
765 A.2d at 323. We also note that the
PCRA Court allowed Lambert to impeach
witnesses using testimony developed at
the 1997 federal habeas hearing, where
Judge Dalzell apparently let her attorneys
ask leading questions. See, e.g., App.
3793. This further undermines any
suggestion that we should not defer to the
PCRA Court’s factual determinations due
to Lambert’s inability to “cross-examine”

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34
is not to say that in certain instances a
court’s prohibition on asking leading
questions could not undermine to some
extent a state court’s factual
determinations. This is simply not such a
case.
C. The Merits
We discern in Lambert’s brief
twelve claims supporting her petition for
a writ of habeas corpus. Those are the
claims for which we grant a COA.27 We
address them in turn.
As a preliminary matter, we note
that Lambert relies on the same record in
her federal habeas proceedings as she did
in the state PCRA proceedings. She has
made no attempt to augment the record.
We therefore simply apply § 2254(d)(2)’s
reasonableness standard to the PCRA
Court’s factual determinations. With
respect to the trial court’s factual
determinations, however, we apply a two-
tiered analysis because Lambert seeks to
rebut the trial court’s findings through
witnesses.
27 Lambert does not pursue on
appeal many of the numerous claims she
pursued at one point or another during the
lengthy state and federal proceedings.
Lambert alleged before Judge Dalzell and
the PCRA Court, for example, that
Corporal Solt fabricated a portion of the
written statement that the Commonwealth
claimed at trial represented what she told
the police when they arrested her the day
of Show’s murder. As we explained
above, Solt testified that a fellow officer
transcribed Lambert’s statement and she
later signed it. A portion at the end of the
statement is handwritten, however, while
most of the statement was typed. In the
handwritten portion, Lambert explained
the route she took to flee the Show
apartment. She also said that she was
wearing black sweat pants and a red
flannel shirt (i.e. Yunkin’s clothing).
Appellate App. 1581-82. Lambert claimed
before Judge Dalzell and the PCRA Court
that the police fabricated the handwritten
portion. See Lambert v. Blackwell, 962 F.
Supp. at 1542. Yet at trial Lambert
specifically acknowledged telling Solt
what the handwritten portion of the
statement indicates—namely that she was
wearing Yunkin’s clothes—but she
claimed she had lied to the police. When
asked why she lied, Lambert explained
that she “thought if they found the clothes
they would know they were Lawrence’s
clothes and he would get in trouble so I
said I had them on.” App. 1218.
On its face, then, Lambert’s
accusation of misconduct against Solt in
federal court is utterly belied by her own
testimony at trial. We assume that Lambert
does not pursue this claim, and others,
because she has taken the prudent course
of only pursuing the arguments she
perceives as her strongest. Regardless, we
only grant a COA on those issues Lambert
has briefed and pursued on appeal. We
observe that many of the claims raised in
District Court were as ill-founded as the
fabrication claim we discuss here.

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35
evidence that was not before that court,
namely evidence developed at the PCRA
proceedings. Thus, when reviewing trial
court factual determinations, we first
determine whether they were reasonable in
light of the record before the trial court. If
reasonable, we then look to whether
Lambert has rebutted the finding with
clear and convincing evidence adduced at
the PCRA hearing.
1. The Sweatpants
As we explained above, Yunkin
testified that Lambert wore his
sweatpants—which the police eventually
obtained and which contained Show’s
blood on them—the morning of Show’s
murder. Lambert argues that the
Commonwealth—specifically the
prosecutor, John Kenneff—knew that
Lambert did not wear Yunkin’s
sweatpants that morning and nonetheless
elicited testimony from Yunkin to the
contrary. She also argues that the
Commonwealth “switched” the sweatpants
at the PCRA Hearing. That is, she argues
that the Commonwealth replaced the
sweatpants from the trial with a different
pair, which it offered into evidence at the
PCRA Hearing and told the PCRA Court
were the same sweatpants as those from
the trial.
a. Knowing Use of
Perjured Testimony
The Supreme Court has long held
that the state’s knowing use of perjured
testimony to obtain a conviction violates
the Fourteenth Amendment. See Giglio v.
United States, 405 U.S. 150, 153 (1972);
Napue v. Illinois, 360 U.S. 264, 269
(1959); Pyle v. Kansas, 317 U.S. 213, 216
(1942); Mooney v. Holohan, 294 U.S.
103, 112 (1935). In United States v.
Agurs, the Supreme Court characterized
this line of cases as finding it
fundamentally unfair to the accused where
“the prosecution’s case includes perjured
testimony and [] the prosecution knew, or
should have known, of the perjury.” 427
U.S. 97, 103 (1976). “The same is true
when the government, although not
soliciting false evidence, allows it to go
uncorrected when it appears at trial.”
United States v. Biberfeld, 957 F.2d 98,
102 (3d Cir. 1992) (citing Giglio, 405
U.S. at 153).
In such circumstances, the
conviction must be set aside “if there is
any reasonable likelihood that the false
testimony could have affected the
judgment of the jury.” Id. In United States
v. Bagley, the Court explained: “Although
this rule is stated in terms that treat the
knowing use of perjured testimony as
error subject to harmless error review, it
may as easily be stated as a materiality
standard under which the fact that
testimony is perjured is considered
material unless failure to disclose it would
be harmless beyond a reasonable doubt.”
473 U.S. 667, 679-80 (1985).
Thus, in order to make out a
constitutional violation Lambert must
show that (1) Yunkin committed perjury;
(2) the government knew or should have
known of his perjury; (3) the testimony
went uncorrected; and (4) there is any
reasonable likelihood that the false

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36
testimony could have affected the verdict.
The state trial court and PCRA Court
concluded that Lambert had in fact worn
Yunkin’s sweatpants and Yunkin
therefore did not perjure himself. These
factual determinations preclude a finding
of constitutional error, and we review
them under the applicable AEDPA
standard.
At trial Lambert’s counsel, Roy
Shirk, strongly urged Judge Stengel to
conclude that Lambert did not wear
Yunkin’s clothes on the day of Show’s
murder, and he developed testimony to
support this argument. He elicited
testimony from Yunkin’s friend, Vincent
Orsi, that Yunkin would wear the
sweatpants “to bed, bumming around the
house.” App. 950. Lambert testified that
although she told the police that she wore
a red flannel shirt and black sweatpants the
morning of Show’s murder, she had lied to
them in order to protect Yunkin. To
contradict the reason Yunkin gave for why
Lambert wore his clothing—i.e., she was
well into her pregnancy—Shirk elicited
testimony that Lambert was barely
“showing” at that stage of her pregnancy.
And he had the following exchange with
Yunkin on cross-examination:
Q. So basically what you are
telling us here this morning,
Michelle was wearing all
your clothing?
A. Correct.
Q. The sweat pants were
yours.
A. Correct.
Q. The red flannel was
yours.
A. Correct.
Q. The jergo was yours.
A. Correct.
Q. I’m going to show you
w h a t ’ s b e e n m a r k e d
Commonwealth Exhibit 10.
That’s your jacket?
A. Yes, it is. Extra large.
Q. Extra large?
A. Correct.
Q. I’m going to show you
w h a t ’ s b e e n m a r k e d
Commonwealth Exhibit 9.
They are your sweat pants?
A. Yes.
Q. In fact you used to wear
them to bed and you used to
wear them while you were
lounging around. You used
to wear these quite a bit,
didn’t you?
A. Yes.
Q. Now you indicated that
Michelle was pregnant at
the time, is that correct?
A. Yes.
Q. You indicated she was
seven months pregnant.
A. Around there, yes.

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37
Q. Around six months?
A. Between six and seven.
Q. She wasn’t really heavy
at the time, was she? She
wasn’t showing a lot.
A. Not really, no.
Q. But it’s your testimony
that she left the house that
day basically clothed in your
clothing.
A. True.
App. 273-74.
During his closing argument, Shirk
argued that all the evidence suggested that
Lambert did not wear Yunkin’s clothing.
The relevant portion of his closing went as
follows:
The assumption we’re
supposed to make is that my
client, due to her pregnancy,
wore Mr. Yunkin’s clothes,
p e r h a p s t o b e m o r e
comfortable because she
was pregnant and obviously
bigger than she normally is;
although Chief Glick, in his
testimony, indicated she
really wasn’t showing that
much. I find it, or the
defense finds it, incredible.
Would you hold up that
jacket.
Mr. Jeffries: (Complying
with the request.)
Mr. Shirk: That is for a fray
in the morning that was
going to last, whatever, an
hour or two, three, she
would wear this for comfort;
and the clothing she put on
to wear the rest of the day,
or at least the clothing that
Detective—T rooper Solt
indicated he believed she
had on that evening, the
difference in size. She was
going to spend a lot more
time in this—(holding up a
sweater)—and she had to
wear that for comfort a few
hours in the morning.
(Holding up a pair of pants.)
This is what she wore the
rest of the day, compared to
them.
You may sit down. Thank
you.
(Mr. Jeffries returned to the
defense table.)
Mr. Shirk: You Honor, I
think even the clothing is
c o n s i s t e n t w i t h t h e
defendant’s testimony.
Vinnie Orsi suggested that
Mr. Yunkin wore them to
bed any time he was over
there, wore them around
lei su re ly. M r. Yunkin
admitted from the stand he
wore those sweat pants to
bed. Lisa Lambert, in her

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38
testimony, said, interestingly
enough, just off the cuff: He
got up that morning, had his
sweat pants on, threw
something on and away they
went.
Probably very likely what
happened, he was getting up
early that morning, just kept
on his sweat pants, threw on
his red flannel, his jergo,
and away they went. It
would seem incredible that
they got up that time in the
morning and he wears these
to bed all the time, he took
them off to give them to her
to put on. Difficult to
believe. I think the clothing
is consistent with her
statement.
App. 1289-90.
After Judge Stengel found Lambert
guilty, she again advanced her argument
regarding Yunkin’s sweatpants in her post-
verdict motion seeking an arrest of
judgment and a new trial. Addressing the
argument that the evidence regarding the
sweatpants rendered the verdict against the
weight of the evidence, Judge Stengel
wrote: “[F]or defendant to argue that the
killer was wearing Mr. Yunkin’s clothing
and, therefore, must have been Mr. Yunkin
is ludicrous. . . . The court listened to the
testimony regarding the clothing, observed
the size of the garments and the size of the
people involved, i.e., Ms. Lambert, Ms.
Buck and Mr. Yunkin, and found there to
be no question raised by the fact that the
clothing appeared to be Mr. Yunkin’s.”
App. 1633. As Judge Stengel later put it:
“The only real question was whether
[Lambert] could have worn sweatpants
owned by the larger Yunkin. This was
resolved by the court’s observations of the
sweatpants, of Mr. Yunkin, of Ms.
Lambert, and the conclusion that Ms.
Lambert could certainly have worn the
garment.” PCRA Decision 204.
Lambert urges us to conclude that
the trial court’s finding of fact was
unreasonable given the record before it
and that the only reasonable conclusion
was that Yunkin wore the sweatpants the
day of the murder. Her argument is this:
Since Yunkin was 6'1” tall and weighed
190 pounds and he admittedly wore the
sweatpants at times, it was impossible for
Lambert (who was 5'6” tall and weighed
143 pounds at the time) to have worn
them.
In order to accept Lambert’s
argument, however, we must make several
speculative leaps that find no support in
the record. First, we must infer that it was
physically impossible for Lambert to fit
into a pair of sweatpants that would have
fit the larger Yunkin. Alternatively, we
must assume that people always wear
clothes that fit them perfectly—that is,
people never wear clothes that are large on
them—and that it is therefore unreasonable
to conclude that either Lambert or Yunkin
wore sweatpants that did not properly fit
them. But neither of these suggestions is
supported by the record or common sense.

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39
The PCRA Court considered
Lambert’s argument and reached the same
conclusion. “Petitioner suggests that the
sweatpants in 1992 were so large,” the
Court explained, “that Ms. Lambert would
be ‘swimming in them.’” But, the Court
concluded, “[t]here is simply no testimony
or even any argument to this effect.”
PCRA Decision 209-10.
We agree with this conclusion.
Against the weight of Lambert’s
speculative argument is a conclusion by a
finder of fact who had the opportunity of
observing both Lam bert an d the
sweatpants during the trial itself.
Lambert’s counsel was free to argue that
Yunkin’s clothes were too big for Lambert
to wear, but the judge was free to disregard
those arguments and to base his findings
on his own observation.
Thus Lambert’s claim that the
prosecution must have knowingly relied on
perjured testimony because the sweatpants
did not fit collapses. Lambert’s vehement
disagreement with the prosecutor’s theory
— and with the judge’s finding — does
not amount to a good faith basis to allege
perjury. There is simply no foundation in
the record for this allegation.
b. “Switching” Evidence
Lambert argues that she is
nonetheless entitled to relief due to the
Commonwealth’s misconduct at the PCRA
hearing. Specifically, Lambert argues that
at the PCRA hearing, the Commonwealth
offered into evidence sweatpants that were
different than those offered into evidence
at trial. In other words, she argues that “the
Commonwealth switched evidence and
produced different sweatpants than those
used at trial.” Lambert Br. 41. The PCRA
Court rejected Lambert’s argument,
because it found that there was no “proof
that the sweatpants admitted into evidence
as Commonwealth’s Exhibit 9 in 1992
have ever been altered, changed, or
substituted.” PCRA Decision 209.
To support her “switching” claim
before the PCRA Court, Lambert offered
testimony that the sweatpants at the trial
tested positive for blood, while the
sweatpants at the PCRA hearing did not.
In addition, a textile expert opined that the
sweatpants at the PCRA hearing were
sized “boy’s extra large” and that a 6'1"
individual who weighed one hundred and
ninety pounds— Yunkin’s approximate
height and weight at the time of the
murder— could not fit into them.
Lambert’s trial counsel, Roy Shirk, also
testified at the PCRA hearing that, to the
best of his recollection, the sweatpants at
the PCRA hearing were smaller than those
at trial. He also opined that the sweatpants
at the PCRA hearing would not fit Yunkin.
O n the oth er han d, the
Commonwealth offered evidence that the
officer who logged the contents of the bag
found in the dumpster behind K-Mart
listed the sweatpants that were eventually
admitted into evidence at the trial as
“ladies dress ‘black’ sweatpants (appears
small size).” App. 7015. This would tend
to contradict Lambert’s bald assertion that
the sweatpants at trial were so huge that
she could not wear them. The forensic
scientist who performed the test to check

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40
for blood prior to the trial, Donald P.
Bloser, Jr., testified that the markings he
made on the sweatpants from trial still
appeared (albeit faded) on the sweatpants
at the PCRA hearing. Bloser also testified
that the sweatpants tested “very weak” for
blood prior to trial in 1992 and that he
found no presence of blood when he
retested other evidence (such as the ski
hats) that had also tested “very weak” for
blood in 1992. App. 2759.28 In addition, an
investigator from the Commonwealth,
James Gallagher, testified about a
photograph he took using the sweatpants
in evidence at the PCRA hearing. He took
a photograph in which he laid the
sweatpants against cardboard box lids that
had also appeared in a photograph of the
sweatpants from trial. The Court
concluded that the two photographs looked
substantially similar.
Given the record before it, the
PCRA court’s factual determination that
the sweatpants were not “switched” is
reasonable. There is substantial evidence
in the record to support the conclusion,
and the evidence to the contrary is
considerably weaker.
M ore important, Lam bert’ s
“switching” claim provides no basis for
habeas relief. She argues that “the
Commonwealth’s attempt to uphold
Lambert’s conviction on evidence
contradictory to that used to convict her
violates ‘the most basic notions of due
process.’” Lambert Br. 41. In support of
this proposition, she cites Dunn v. United
States, 442 U.S. 100 (1979), Smith v.
Groose, 205 F.3d 1045 (8th Cir. 2000), and
Thompson v. Calderon, 120 F.2d 1045 (9th
Cir. 1997).
In Dunn, the Court of Appeals had
affirmed a conviction based on facts that
had been adduced at trial but that neither
supported the offense charged in the
indictment nor provided the foundation for
the jury’s conviction. The Supreme Court
held that “appellate courts are not free to
revise the basis on which a defendant is
convicted simply because the same result
would likely obtain at trial.” 442 U.S. at
107. In other words, a defendant’s due
process rights are violated when his
conviction is affirmed on an offense that
he was not charged with and that was not
presented to the jury or court that tried
him.
Smith and Thompson involved
instances where the government offered
contradictory theories in two separate trials
to convict two individuals for the same
crime. The Thompson court held that
“when no new significant evidence comes
to light a prosecutor cannot, in order to
convict two defendants at separate trials,
offer inconsistent theories and facts
regarding the same crime.” 120 F.3d at
1058. The Smith court concluded that the
“State’s use of factually contradictory
theories constituted ‘foul blows’” and
“deprived [the defendant] of due process
28 Bloser also testified that evidence
that tested “positive” for blood in 1992
tested “very weak” for blood when he
tested it prior to the PCRA hearing. App.
2759.

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41
and rendered his trial fundamentally
unfair.” 205 F.3d at 1051.
To a certain degree Dunn and
Smith/Thompson represent different sides
of the same coin. Dunn requires a certain
degree of vertical consistency (between
trial and appeal) in the theories the
government offers, while Smith and
Thompson require a certain degree of
horizontal consistency (between two
trials). Both lines of cases are inapposite,
however, because they do not provide a
basis for habeas relief here.
Lambert’s argument suffers from
the same “fundamental flaw” that we
identified in the petitioner’s argument in
Gattis v. Snyder, 278 F.3d 222 (3d Cir.
2002). There, we explained:
The fundamental flaw in
Gattis' argument is that in
the decisions of which he
complains the state courts
did not “uphold [his]
conviction on a charge that
was neither alleged in an
indictment nor presented to
a jury at trial.” [Dunn, 442
U.S. at 106]. The allegedly
different theory of guilt was
not presented on direct
appeal in support of his
conviction but in the course
of a post-conviction hearing
held in connection with his
claim that counsel was
ineffective for failing to
present expert testimony
c o n c e r n i n g t h e
implausibility of the state's
account of the murder. The
S u p e r i o r C o u r t a n d
Delaware Supreme Court
did not affirm his conviction
based on the state's theory
but mere ly found his
i n e f f e c t i v e n e s s c l a im
unpersuasive. The state's
theory played a small role, if
any, in the courts' reasoning.
In this context Dunn and
[Cola v. Reardon, 787 F.2d
681 (1st Cir.), cert. denied,
479 U.S. 930 (1986)] are
simply not applicable.
Id. at 238.
Similarly, and more importantly,
habeas proceedings are not the appropriate
forum for Lambert to pursue claims of
error at the PCRA proceeding. As we
explained in Hassine v. Zimmerman, 160
F.3d 941 (3d Cir. 1998):
The federal courts are
authorized to provid e
collateral relief where a
petitioner is in state custody
or under a federal sentence
imposed in violation of the
Constitution or the laws or
treaties of the United States.
28 U.S.C. §§ 2254, 2255.
Thus, the federal role in
reviewing an application for
habeas corpus is limited to
evaluating what occurred in
t h e s t a t e o r f e d e r a l
proceedings that actually led

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42
t o t h e p e t i t i o n e r ' s
conviction; what occurred in
the petitioner's collateral
proceeding does not enter
into the habeas calculation.
We have often noted the
general proposition that
habeas proceedings are
“hybrid actions”; they are
“ i n d e p e n d e n t c i v i l
dispositions of completed
c r i m i n al proc eedin g s .”
Federal habeas power is
“limited . . . to a
determination of whether
there has been an improper
detention by virtue of the
state court judgment.”
Id. at 954-55 (internal citations omitted);
see also Morris v. Cain, 186 F.3d 581, 585
n.6 (5th Cir. 1999); Williams-Bey v.
Trickey, 894 F.2d 314, 317 (8th Cir. 1990).
To be sure, error in state collateral
proceedings may affect the deference we
owe the court’s findings under § 2254(d)
and 2254(e)(1). But, as we admonished in
Hassine, alleged errors in collateral
proceedings, such as Lambert’s claim that
the prosecution “switched” the sweatpants,
are not a proper basis for habeas relief
from the original conviction. It is the
original trial that is the “main event” for
habeas purposes.
2. Evidence of Yunkin’s
Location During the Murder
Prior to the trial, an individual
named Kathleen Bayan gave a statement to
a Commonwealth investigator indicating
that she had seen Yunkin driving through
the Show condominium complex with two
passengers the morning of Show’s murder.
Lambert argues this evidence shows that
the Commonwealth knowingly used
perjured testimony, namely Yunkin’s
testimony that he never drove within the
condominium complex that morning. She
also argues that the Commonwealth’s
failure to disclose Bayan’s statement prior
to the trial violated Brady v. Maryland,
373 U.S. 83 (1963).
The circumstances surrounding
Bayan’s statement were thoroughly
canvassed at the PCRA hearing. Bayan
testified that on July 5, 1992, soon before
Lambert’s trial began, Detective Ronald
Savage of the East Lampeter Township
Police Department called her to discuss a
matter regarding her son. During the
conversation, Bayan (who lived in the
same condominium complex as Show) told
Savage that on December 20, 1991 she had
seen a light-haired young man driving with
two passengers along the road she lived on
within the condominium complex.
Savage visited Bayan two days later
to take a statement from her. Bayan told
him that as she was pulling out of her
driveway on Black Oak Drive, a circular
road that passed through the condominium
complex, she saw three individuals drive
by in a brown car. The passengers were
talking and appeared to be in conflict, and
the young man driving the car pushed
down the head of the person sitting in the
front seat. Bayan provided a written
statement that provided, in relevant part:

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

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44
and that is where the car got
in front of me. But either
way I remember thinking
that the driver was not
driving safely.)
I had never seen the
car in the complex before.
There were no other cars
pulling out of the complex
during this time.
I did not see their
faces clearly because of the
distance, dirty windows, and
I have a perceptual disability
that limits my span of focus
(i.e. when I look at a license
plate and focus on the first
letter, I cannot tell what the
last 3 figures are). . . .
I would like to
apologize for not contacting
you all sooner. At first, I did
not realize there was a
connection. Then when I
did, the suspects were
arrested [and] from what I
read in the papers, there
appeared to be enough
evidence.
Appellate App. 1613-15. Bayan testified at
the PCRA hearing that she accidentally
omitted from her statement that she saw
the driver push down one of the
passenger’s heads.
Savage testified that he gave the
written statement to John Kenneff and told
Kenneff that he believed Bayan was not
credible because he thought she had
emotional problems. Kenneff sent a letter
to Lambert’s counsel, Roy Shirk, stating:
“It is my understanding that it is the
defense contention that on December 20,
1991, shortly after 7:15 a.m., Yunkin
picked up Lambert at the wooded area near
the intersection of the driveway to the
Oaks Apartment Complex and Oakview
Road. If my understanding is correct
please advise.” Appellate App. 1620.
Kenneff testified that he sent this letter in
order to determine whether he had an
obligation to disclose Bayan’s statement.
Kenneff knew that Yunkin planned
to testify that he picked up Lambert and
Buck on Oak View Road— outside the
condominium complex—and Bayan’s
statement was therefore inconsistent with
Yunkin’s planned testimony. But Kenneff
believed, according to his testimony, that
he had no obligation to disclose Bayan’s
statement unless it corroborated the
version of events Lambert planned to offer
at trial. And all the evidence other than
Bayan’s statement— including Lambert’s
statement to the police upon her
arrest—indicated that Yunkin had picked
Lambert and Buck up outside the
condominium complex. As a result, he did
not tell Shirk about the statement.
a. Knowing Use of
Perjured Testimony
Lambert’s first argument based on
Bayan’s statement is that since the
statement placed Yunkin in the
condominium complex and Yunkin
testified that he never entered the complex,

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45
the government knowingly elicited
perjured testimony from Yunkin. Lambert
would, in effect, have us find a due
process violation anytime a prosecutor
elicits testimony that contradicts testimony
that the defense elicits. Discrepancy is not
enough to prove perjury. There are many
reasons testimony may be inconsistent;
perjury is only one possible reason.29 As
we explained above, in order to sustain a
claim of constitutional error Lambert must
show that Yunkin actually perjured
himself and the government knew or
should have known of his perjury. These
are factual determinations. See, e.g., Ortiz
v. Stewart, 149 F.3d 923, 936-37 (9th Cir.
1998) (finding no constitutional violation
because of factual finding that testimony
was not perjured); United States v.
Caballero, 277 F.3d 1235, 1244 (10th Cir.
2002) (finding no constitutional error
because of “the absolute lack of evidence
to show either the falsity of [the witness’s]
testimony or the prosecutor's knowledge of
false testimony”).30
The PCRA Court declined to
conclude that Yunkin perjured himself
because the lion’s share of evidence
29 This principle is illustrated by the
(perhaps apocryphal) anecdote told about
the legendary English barrister—later
Lord Chancellor—F.E. Smith. Smith, then
a young lawyer, was charged with assault
on a police officer arising out of an
altercation at Oxford. Defending himself
at trial, Smith denied kicking the officer.
The prosecutor challenged th e
inconsistency between Smith’s testimony
and that of the policeman, asserting Smith
was necessarily accusing the latter of
perjury.
As related by an observer at trial
(John Simon, also a future Lord
Chancellor):
On the contrary, said
F.E. sweetly, that is one of
five possible explanations.
. . .
One is that he is
committing perjury; the
second is that I am
committing perjury; the
third is that he is honestly
mistaken; the fourth is that I
am honestly mistaken; and
the fifth is that the two
assertions though apparently
contradictory can none the
less be reconciled.
Viscount Simon, Retrospect 36
(Hutchinson 1952), quoted in John
Campbell, F.E. Smith 77 (Pimlico 1991).
30 In the Supreme Court cases
establishing a due process violation for
knowing use of perjured testimony, it was
undisputed that the testimony at issue was
false and the prosecution knew of its
falsity. See, e.g., Napue, 360 U.S. at 269.
Thus the Supreme Court has not addressed
the level of prosecutorial knowledge
necessary to constitute a constitutional
violation. See Drake v. Portuondo, 321
F.3d 338, 345 (3d Cir. 2003).

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46
corroborated Yunkin’s testimony. PCRA
Decision 175. We conclude that the
PCRA’s Court’s decision was reasonable.
In reaching its conclusion, the
PCRA Court considered Lambert’s
statement to the police upon her arrest,
testimony from three condominium
complex residents, and Buck’s testimony
at the PCRA hearing. After the police
arrested Lambert the day of Show’s
murder, she gave a statement consistent
with being picked up on Oak View Road.
She stated that after leaving Show’s
apartment she ran through “two fields” and
a “patch of woods,” stepped in a creek
(“like a little runoff”), fell in “the briars,”
and ended up on someone’s backyard.
Similarly, three of Show’s neighbors
(Kleinhaus, Frederick Fry, and Patricia
Fry) testified at the trial that they saw two
individuals of generally the same build
walking in a direction consistent with
Lambert and Buck being picked up on Oak
View Road.
Buck, who had not ever previously
testified in any court proceedings
regarding the events of December 20,
1991, testified at the PCRA hearing. Buck
related that she and Lambert entered
Show’s apartment and accosted Show.
Although Buck made several inculpatory
admissions, she testified that it was
Lambert who stabbed Show and slit her
throat.31 In addition, Buck stated that after
31 Because it goes to the
reasonableness of Judge Stengel’s factual
determination, we note his conclusion
regarding Buck’s credibility:
Ms. Buck has
nothing to gain by lying
about Ms. Lambert’s
involvement in the death of
Laurie Show. In her
testimony at the PCRA, she
had the candor and the
d e c e n c y t o a c c e p t
responsibility for her own
role in the killing. She
knows that she blocked
Laurie Show’s path as
Laurie tried to escape. She
knows that she held
Laurie’s legs down while
Ms. Lambert cut her throat.
In our close observation of
Ms. Buck as she testified
and in our subsequent
consideration of her
testimony, we find her
credible in her description
of the murder. She has
acknowledged that she
deserves her sentence
because of her actions on
December 20, 1991. She has
acknowledged her guilt
under oath in a courtroom in
the same courthouse in
which her own PCRA
petition is pending. What
possible impact will this
admission have on her own
PCRA claim that her trial
resulted in a “fundamentally
unfair” conviction?

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47
she and Lambert left Show’s apartment
they proceeded toward a wooded area,
walked across a field, and ended up in
“some bushes, maybe a ditch” along Oak
View Road. App. 10426-27.
Furthermore, the PCRA Court
found that Bayan was not a credible
witness. The Court came to that conclusion
for several reasons. Bayan did not come
forward with her statement until several
months after the murder, for example, and
she only told Savage about her
observations after engaging in lengthy and
seemingly irrelevant discussions regarding
her personal life.32 In addition, the PCRA
Court allowed Bayan to testify from
Florida via teleconference because she told
the Court she needed to care for her
handicapped fiancé. Yet the Court
subsequently learned that there was an
active warrant for her arrest in Lancaster
County for her failure to pay taxes. The
Court also found that Bayan’s perceptual
disab ility rendered her testimony
questionable.33 Finally, Judge Stengel
concluded that his personal observation of
B a y a n w h i l e s he t e s ti f i ed v ia
teleconference was consistent with
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
well that, when she took the
stand to acknowledge,
under oath in a courtroom,
that she actively participated
in the killing of Laurie
S h o w , s h e s e v e r e ly
compromised any chance
that she has that a state or
federal court will be
inclined to find that she has
been wrongly convicted.
Her testimony will not take
a day off her life sentence
and will not change the
events of December 20,
1991. We find her credible
in her description of what
happened that morning.
PCRA Decision 159-60.
32 Similarly, Bayan’s 1992
statement provided a substantial amount of
information, regarding her son, that was
irrelevant to her account of what she
allegedly saw on December 20, 1991.
When the Commonwealth inquired about
this at the PCRA hearing, Bayan stated
that she “was going through a lot with [her
son] at the time” and wanted Savage “to
realize where I was coming from.” App.
8162.
33 When Bayan focuses on a
particular object, she has difficulty
focusing on and seeing the items that
surround that object. So, for example, if
she is “looking at one word, everything
else around it just isn’t clear.” App. 8169.
As a result, she’s “a word-by-word
reader.” Id.

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48
unreasonable in light of other evidence in
the record. Lambert Br. 52. Most notably,
Hazel Show testified at the PCRA hearing
that she recalled driving past Yunkin on
her way home the day of the murder and
seeing Yunkin pushing down the head of a
passenger in the front seat. But she did not
recall passing Yunkin until after she heard
Bayan testify at the 1997 habeas hearing.
At the time of the trial in 1992, she only
remembered “a flash of brownish color.”
App. 9210. She testified at the PCRA
hearing about the conversation she had
with Savage a couple of days before the
trial:
[Detective Savage] had told
m e a n e i g h b o r la d y
mentioned that she had seen
a brown car leaving our
complex.
When he said that, I
saw a flash of a brownish
color and I said to him, a
brownish color? And then
we went over this, had I
seen a car? I wasn’t sure.
Where was it? I wasn’t sure.
What type of car? Was
anyone in it? And I had
nothing in my memory
except when he said this
brown color, I just saw a
flash of a brown car. Not
even knowing if it was a car
or anything and I tried to jog
my memory to get more
information but there wasn’t
anything there.
App. 9210-11. She became upset when she
was not able to jog her memory, and
Savage told her not to worry about it
because they “had solid witnesses who
could answer the questions about the flight
that they took, the path that they took from
the condo.” Id. at 9212.
The PCRA Court found that Hazel
Show’s recollection did not sufficiently
corroborate Bayan’s testimony to establish
that Yunkin perjured himself. This
conclusion was reasonable in light of the
full record. First, as the Court noted, Hazel
Show could not rule out the possibility that
she saw the car on Oak View Road. In
addition, Hazel Show did not recollect
seeing Yunkin’s car until approximately
six years after the event occurred. In the
intervening time she sat through a trial and
habeas hearing where she heard testimony
regarding the events she eventually
recollected. These facts tend to diminish
the value of her testimony at the PCRA
hearing regarding seeing Yunkin’s car, and
they bolster the reasonableness of the
PCRA Court’s factual determination.
Moreover, even if Hazel Show’s
testimony sufficiently corrob orated
Bayan’s statement to show that Yunkin’s
testimony was incorrect, the testimony
does not tend to show that the government
knew or should have known of the perjury.
At the time of the trial, all Hazel Show
recalled was a “flash of brown.” In light of
the substantial evidence supporting
Yunkin’s testimony and questioning
Bayan’s credibility, it was reasonable for
the PCRA Court to conclude that the
government did not and should not have

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49
known Yunkin was perjuring himself
(assuming, of course, that Hazel Show’s
testimony in 1997 and 1998 in fact
demonstrated he was lying).34 The
existence of evidence tending to contradict
testimony the government elicits at trial
does not conclusively show that either the
witness perjured himself or (if he did) that
the government knew or should have
known of the perjury. The PCRA Court’s
factual findings are dispositive.
b. Suppression of
Brady Material
In Brady v. Maryland, the Supreme
Court held “that the suppression by the
prosecution of evidence favorable to the
accused upon request violates due process
where the evidence is material either to
guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.”
373 U.S. at 87. The Court subsequently
held that “a defendant’s failure to request
favorable evidence did not leave the
Government free of all obligation,” and a
Brady violation might arise “where the
G o v e r nment f a i le d t o v o l u n te e r
exculpatory evidence never requested, or
requested only in a general way.” Kyles v.
Whitley, 514 U.S. 419, 433 (1995). In
addition, impeachment evidence, as well
as exculpatory evidence, falls within the
Brady rule, see Giglio v. United States,
405 U.S. 150, 154 (1972), because “[s]uch
evidence is ‘evidence favorable to an
accused.’” United States v. Bagley, 473
U.S. 667 (1985) (quoting Brady, 373 U.S.
at 87). Thus to establish a Brady violation
requiring relief, a defendant must show
that (1) the government withheld evidence,
either willfully or inadvertently; (2) the
evidence was favorable, either because it
was exculpatory or of impeachment value;
and (3) the withheld evidence was
material. See Banks v. Dretke, -- U.S. --,
124 S. Ct. 1256, 1272 (2004); United
States v. Palermo, 929 F.2d 967, 970 (3d
Cir. 1991).
The PCRA Court found that
Lambert had not made either of the latter
two showings. With respect to the second
prerequisite, the Court found that Bayan’s
statement was not the type of evidence that
fell within the government’s duty to
disclose under Brady. Specifically, the
Court held that “[a]bsent a specific request
by the defendant for exculpatory evidence,
a prosecutor has a duty to make evidence
available to the defense that is truly
exculpatory rather than merely favorable.”
PCRA Decision 170. And it found that the
evidence was not “truly exculpatory” in
part because Lambert’s lawyer told the
prosecution that Lambert planned to
contend at trial that Yunkin had picked her
up on Oak View Road. Id. at 171-72. We
review this legal determination under §
2254(d)(1) to determine whether it was
contrary to or an unreasonable application
34 The PCRA Court did not
explicitly make this factual determination,
but it is implicit in its findings. And we
owe AEDPA deference to both express
and implicit factual findings. See Weeks
v. Snyder, 219 F.3d 245, 258 (3d Cir.
2000); Campbell v. Vaughn, 209 F.3d
280, 285-86 (3d Cir. 2000).

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50
of clearly established federal law. See
Hollman v. Wilson, 158 F.3d 177, 179 (3d
Cir. 1998).
This portion of the Court’s decision
was contrary to federal law, because the
Supreme Court has “disavowed any
difference between exculpatory and
impeachment evidence for Brady
purposes.” Kyles, 514 U.S. at 433 (citing
Bagley, 473 U.S. at 667). Here, as in
United States v. Pelullo, “[w]e have no
hesitation in concluding that the
government inexplicably failed to abide by
its obligation under Brady to disclose
potential impeachment evidence.” 105
F.3d 117, 122 (3d Cir. 1997). While
Bayan’s statement did not exculpate
Lambert, it was inconsistent with Yunkin’s
testimony regarding his whereabouts
during the crime. Bayan could have been
called, therefore, to contradict at least one
aspect of Yunkin’s testimony, and perhaps,
therefore, to cast a larger doubt on his
credibility. And while Bayan’s own
credibility might have been open to
challenge, resolution of these kinds of
credibility disputes should take place in the
courtro om, and not throug h the
prosecutor’s unilateral decisionmaking.
The PCRA Court concluded,
however, that even if the government had
erred by not disclosing the evidence, the
withheld evidence was not material for
Brady purposes. “[A] showing of
m a t e riality does not r e q u i r e a
demonstration by a preponderance that
disclosure of the suppressed evidence
would have resulted ultimately in the
defendant’s acquittal.” Kyles, 514 U.S. at
435. Rather, “[t]he evidence is material
only if there is a reasonable probability
that, had the evidence been disclosed to
the defense, the result of the proceeding
would have been different.” Bagley, 473
U.S. at 682.35 In other words, the relevant
question is: “when viewed as a whole and
in light of the substance of the
prosecution's case, did the government's
failure to provide . . . [the] Brady
impeachment evidence to the defense prior
to the [] trial lead to an untrustworthy
guilty verdict . . . ?” See Pelullo, 105 F.3d
at 23; see also Banks, 124 S. Ct. at 1276-
77.
“Because it is contrary to
overwhelming evidence,” the PCRA Court
held, “her story would have had no
impact.” PCRA Decision 175. In other
words, “it did not so undermine the truth-
determining process that no reliable
adjudication of guilt or innocence could
have taken place.” Id. Since this too was a
legal determination, we review it also
under § 2254(d)(1). We conclude that it
was neither contrary to nor an
unreasonable application of clearly
established federal law.
The potential value of Bayan’s
statement as impeachment evidence was
35 The Kyles Court also noted that
the materiality of “suppressed evidence [is
to be] considered collectively, not
item-by-item.” 514 U.S. at 436. But we
need not follow that admonition here since
Bayan’s statement is the only evidence we
find the government wrongfully withheld.

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51
negligible. There was substantial evidence
at trial, including the testimony of Lambert
herself, that tended to show Yunkin picked
up Lambert and Buck on Oak View Drive.
In any case, there existed far stronger
evidence regarding Yunkin’s truthfulness
(or lack thereof). Indeed, the government
conceded in its closing that it believed
Yunkin was not fully truthful in his
testimony. See App. 1315; supra, at
Section IV.C. “Suppressed evidence is not
material when it ‘merely furnishes an
additional basis on which to impeach a
witness whose credibility has already been
shown to be questionable.’” United States
v. Amiel, 95 F.3d 135, 145 (2d Cir. 1996)
(internal citation omitted).
Moreover, the materiality of the
statement is negligible even if it would
have conclusively established that Yunkin
p i c k e d u p L a m b e r t within th e
condominium complex instead of on Oak
View Road. Assuming that Bayan’s
statement had that probative value, it
would have placed Yunkin somewhat
closer to the scene of Show’s murder. But
despite Lambert’s assertions to the
contrary, placing Yunkin driving within
the condominium complex does not
establish that he entered the Show
apartment and committed the murder.
Finally, even if evidence showed
that Yunkin was in the apartment, the
evidence was sufficient to conclude that
Lambert was guilty of murdering Show.
The evidence at trial overwhelmingly
showed that Lambert had the motivation
(she hated Show), she supplied the murder
weapon, and she entered Show’s
apartment that morning. Thus even if
Bayan’s statement fully implicated Yunkin
in Show’s murder, it would not have
sufficed to exculpate Lambert. There is no
reasonable probability that evidence
showing Yunkin was driving within the
condominium complex, rather than on a
road adjacent to the complex, would have
changed the result of the trial.
3. The “29 Questions”
As we explained above, when
cross-examining Yunkin at trial Lambert’s
counsel offered into evidence a document
that she and Yunkin purportedly passed
between each other while they were in jail.
Yunkin acknowledged that he and Lambert
passed a document between them, but he
also testified that the document he was
presented with at trial—what we refer to as
the “29 Questions”—w as not the
document that he recalled passing back
and forth with Lambert. Yunkin testified
that his handwriting appeared on the 29
Questions and some of the questions were
the same as he recalled from the document
he passed with Lambert, but he claimed
that he never saw some of the questions on
the 29 Questions document.
As a preliminary matter, we note
that Lambert has made much of this
document as conclusively establishing her
innocence. The trial judge, sitting as a
finder of fact, found the document
unreliable and inconclusive. As a result, he
did not rely on it when he reached his
verdict because he concluded that the
document did not create reasonable doubt
as to Lambert’s guilt. After reviewing the

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52
record in some detail, we tend to agree
with the trial judge’s conclusion. And we
find fanciful Lambert’s assertion that the
only reasonable conclusion from the
document is that Yunkin and Buck
murdered Show and Lambert was not
involved.
Yet our opinion of the probative
value of the document is irrelevant. Our
role is confined to determining whether
any constitutional error occurred at trial.
Stripped of Lambert’s attempts to retry the
case in another forum, her claim regarding
the 29 Questions is this: Yunkin’s
testimony regarding the 29 Questions was
perjured and the prosecution knowingly
elicited that testimony.
Lambert specifically bases this
argument on two portions of Yunkin’s
testimony. First, Yunkin testified that
although the answers written on the 29
Questions appeared to be in his
handwriting the 29 Questions was not the
document that passed between him and
Lambert in prison. He testified that in the
document that had passed between him
and Lambert, Lambert had written the
questions in pencil and he had written all
his answers in pencil and then traced over
every other word in ink so that they could
not be changed. Yet Lambert’s expert
testified that the questions in the 29
Questions were written in ink, and there
was no indication of any writing in pencil
on the document. The expert also
confirmed that the answers were written in
Yunkin’s handwriting.
Second, Lambert’s counsel asked
Yunkin about a portion of the document in
which the following question and answer
appeared:
5) [Question:] I think about
Tressa and Laurie! I think
you guys are sick! I think
about her life you took! All
those people at her funeral!
And I know very well that
you don’t feel sad! You
were happy, U weren’t sad
Friday! Do you remember
seeing [crossed out word]
dead? [Answer:] Yes, I
remember seeing [crossed
out word] dead.”
PCRA Opinion (attached). Yunkin
testified that on the document he passed
back and forth with Lambert he had
responded to a question by answering,
“Yes, I remember seeing Tressa dead,”
because the question he was answering
asked, “Do you remember seeing Tressa
dead? Do you remember going to her
funeral?” App. 329. Yunkin testified that
although the 29 Questions was not “the
o riginal document,” it was h is
understanding the word crossed out in
Question 5 was “Tressa.” App. 328-30.
But Lambert’s expert testified that the
crossed-out word was “Laurie.”
The PCRA Court found that the
prosecution openly conceded to the trial
court that it believed Yunkin was not fully
truthful in his testimony regarding the 29
Questions. The Court explained:

-- 52 of 70 --

53
Mr. Kenneff stipulated to
[the testimony of Lambert’s
expert] on the basis that he
had the document examined
by a Pennsylvania State
Police examiner as well.
There was never any effort
by the Commonwealth to
hide what Mr. Yunkin said
or to somehow bolster what
Mr. Yunkin said with expert
testimony. Mr. Kenneff
f r e e l y a n d o p e n l y
acknowledged that this
expert’s analysis of the
document was consistent
with the defense expert and
these expert opinions were
both inconsistent with Mr.
Yunkin’s testimony.
PCRA Decision 117-118.36 The Court’s
finding of fact was eminently reasonable
in light of the record. In particular,
Kenneff made the following statement to
the Court during closing arguments:
Mr. Yunkin. Is he guilty of
the crime of homicide?
Fortunately, neither of you
have to decide that in this
case nor do I have to argue
it. I don’t think I held
anything back about my
feelings about Mr. Yunkin.
I said in my openings he’s
either lying, he’s stupid or
he’s naive. Perhaps the
evid ence in this case
suggests he’s all three.
I’m not going to stand here
and say that Mr. Yunkin was
being truthful about [the 29
Questions]. I can’t do that.
There is no evidence to do
that. What I can say about
Mr. Yunkin and what I can
say about wh at M iss
Lambert needed to cover up
for him is that logic says
Yunkin was an accessory
before the fact.
App. 1315. Later on in his closing
argument Kenneff stated: “Did Yunkin
participate in the murder of Laurie? My
stomach says he did, my mind says he did.
Did he participate in the way that Miss
Lambert says? The facts say no.” App.
1319.
The PCRA Court’s factual finding,
supported strongly by the record, precludes
a determination that the prosecution
knowingly used false evidence to obtain a
conviction. It also precludes a finding that
“the State, although not soliciting false
evidence, allow[ed] it to go uncorrected
when it appear[ed].” Napue v. Illinois, 360
U.S. at 269. To the contrary. The
government fully and openly informed the
Court that it believed Yunkin’s testimony
36 The Court also noted: “Mr.
Kenneff never hid his belief that Mr.
Yunkin was not being forthright about that
document. In truth, no one involved in the
1992 trial could quite figure out who
wrote what on that document and what it
meant.” PCRA Decision 120.

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54
was not fully truthful. There was no
constitutional violation at trial regarding
the 29 Questions. The flaws in Yunkin’s
testimony were fully aired at trial and
candidly acknowledged by the prosecution.
Lambert also argues that having
conceded that a portion of Yunkin’s
testimony was questionable, the prosecutor
had an ethical obligation to characterize
the entirety of testimony as perjury, and to
withdraw the witness. These contentions
have no merit. A prosecutor fully
discharges his obligation when he
discloses all inconsistent evidence to the
trier of fact and defense counsel. “[W]hile
the government has a duty to be
forthcoming with favorable evidence, it is
not required to draw inferences from that
evidence which defense counsel is in an
equal position to draw . . . . When the road
to what defense counsel think is potential
perjury is so plainly marked, the
government need not supply a map.”
United States v. Gaggi, 811 F.2d 47, 59
(2d Cir. 1987). Nor is it true that a witness
who fabricates in one area is incompetent
to testify about others. This concept is
embodied in the common jury instruction
known as the “falsus in uno, falsus in
omnibus” charge, which provides: “If you
find that any witness testified falsely about
any material fact, you may disregard all of
his testimony, or you may accept such
parts of it as you wish to accept and
exclude such parts of it as you wish to
exclude.” United States v. Rockwell, 781
F.2d 985, 988 (3d Cir. 1986) (emphasis
omitted).
4. The Crime Scene
Photographs
A photograph offered into evidence
at Lambert’s trial showed Laurie Show
lying dead on the floor of her apartment.
The photograph showed a telephone cord
wrapped once around her leg near her
ankle. Lambert contends that there was no
telephone cord wrapped around Show’s
leg before law enforcement authorities
became involved with the crime scene. She
contends that several hours after Show’s
body was removed from the crime scene,
the police brought the corpse back to the
apartment, wrapped a telephone cord
around its leg, and photographed the body.
Lambert claims that the police did
this in order to discredit the statement she
gave to the police upon her arrest. In her
statement, Lambert told the police a
version of events where “[Show] tried to
grab the phone and [Buck] grabbed it away
and threw it down.” Appellate App. 1577.
According to Lambert, the fabricated
crime scene photographs showing a
telephone cord around Show’s leg served
to “discredit Lambert’s testimony that it
was Buck who struggled with Show, and
in doing so, threw a telephone across
Show’s room.” Lambert Br. 62.37
37 Lambert also argues that the
government used the allegedly fabricated
photograph “to substantiate the
Commonwealth’s theory at trial that Ms.
Show’s legs were tied up and held down
as Lisa Lambert slit her throat.” Lambert
Br. 62-63. We have thoroughly reviewed

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

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56
Show’s room.” Lambert Br. 62. In her
actual statement to the police, however,
Lambert merely said that Buck grabbed the
phone from Show and “threw it down.”
Appellate App. 1577. This is an important
distinction.38
And even if Lambert had told the
police initially that Buck threw the
telephone across the room—which she did
not—the crime scene drawing would not
support her extraordinary allegations that
police returned the body to the crime scene
and rearranged it. Lambert apparently
contends that if Buck threw the telephone
across the room, it would have been
impossible for the phone to end up near
Show’s body. But the crime scene drawing
itself shows the telephone close to
Lambert’s feet. Thus, on its face, it defeats
Lam bert’s allega tions o f po lice
misconduct: even if the police thought that
evidence showing the phone near Show
would have discredited Lambert, there
would have been no need for the police to
stage a photograph. The drawing
accomplishes the same object. Whether or
not the cord was touching Show’s feet is
immaterial.39
Lambert further argues that
testimony from individuals who witnessed
the crime scene on the day of Show’s
murder establishes that the police
fabricated the crime scene photographs.
Specifically, witnesses testified at the
PCRA hearing that they saw Show’s feet
at the crime scene and a telephone cord
was not wrapped around them. In addition,
witnesses testified that Show’s body lay
38 To be sure, Lambert claimed at
trial that Buck “threw [the phone] across
the room.” Appellate App. 631. But
Lambert’s testimony at trial months later is
irrelevant to her allegations that the police
doctored evidence to contradict her
original statement to the police. What is
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
not occur until months later would a
require a finding that the police were
clairvoyant.
We are unpersuaded by Lambert’s
(and her counsel’s) attempts to create
allegations of misconduct by selectively
relying on evidence from various
proceedings in Lambert’s lengthy route
through the criminal justice system: the
pre-trial investigation, the 1992 trial, the
1997 habeas hearing, and the 1998 PCRA
hearing.
39 In addition, we agree with the
PCRA Court’s conclusion that “Ms.
Buck’s throwing the telephone across the
room and the location of the cord around
Laurie Show’s leg are not mutually
exclusive.” PCRA Decision. 236. The
Court explained: “It appears that the
telephone was close to the entrance of the
bedroom, by the bed, when Laurie picked
it up. If Ms. Buck threw it across the
relatively small bedroom, it could easily
have landed near the closet where Laurie’s
body came to rest.” Id.

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57
parallel to the closet, while the photograph
depicted her body at a slight angle.
Lambert’s arguments hinge on an
unsupported view of crime scenes as
antiseptic and static environments, and an
utterly unrealistic supposition about the
precision of witness observations and
memories. We agree with the PCRA
Court’s conclusion that “the telephone
could have been moved as the several
medical and police personnel tended to
Laurie or processed the crime scene.”
PCRA Decision 236. And slight
inconsistencies between the body’s
position in the photograph and witness’s
recollections (parallel to the closet versus
at a slight angle) do not establish an
elaborate conspiracy to implicate Lambert
in Show’s murder.40
Finally, Lambert argues that
evidence regarding the presence of blood
on Show’s face shows that the police
brought her body back to the crime scene
in order to fabricate the photographs.
Specifically, the funeral director where
Show’s body was taken on the afternoon
following the murder testified that he
removed blood from Show’s face when
her family came to view her. Yet the
autopsy report from the next morning
indicated that “much dried blood” was on
Show’s face. Lambert argues that “[t]he
only possible explanation for this is that
the body had been returned to the crime
scene after it had been at the funeral home
so photos could be fabricated.” Lambert
Br. 67.
The funeral director certainly
testified that he cleaned Show’s face when
her family came to view her. He stated:
“[W]hen I heard that the father and
possibly other family members were
coming in, I had taken a damp towel and
had cleaned up her face and also covered
her neck area.” Appellate App. 1492. He
did not indicate, however, that he removed
all the blood from her face. And nothing
in his testimony is necessarily inconsistent
with the observation at the autopsy the
next day that “[m]uch dried blood is seen
covering the face and the neck.” Appellate
App. 1551. Lambert urges us to draw the
strongest possible inferences from
relatively indecisive evidence and
conclude that the police engaged in
unconscionable acts of misconduct to
fabricate evidence of marginal, if any,
utility in implicating Lambert.41 The
PCRA Court understandably declined to
do so, and we unhesitatingly defer to its
reasonable determination.
5. The Dying Declaration
At the trial, Hazel Show testified
that Laurie Show said “Michelle did it” as
she lay dying in her mother’s arms.
40 We also note that the crime scene
drawing depicts Show’s body at a slight
angle to the closet. Apparently, Lambert
feels the drawing is accurate only insofar
as it is inconsistent with the photograph.
41 Indeed, we have come across no
portion of the trial record where the
Commonwealth used the photograph to
discredit any of Lambert’s testimony.

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58
Lambert argued at trial that given the
injuries Show sustained she could not have
said “Michelle did it,” either because she
had died before Hazel Show returned
home or the injury to her neck rendered
her unable to speak. Both the prosecution
and defense offered expert testimony to
support contrary conclusions.
The issue arose again at the PCRA
hearing. Lambert argued that expert
testimony that was not offered at her trial
was “after-discovered evidence” that
would warrant relief under Pennsylvania’s
PCRA statute. Once again, both Lambert
and the Commonwealth offered conflicting
expert testimony as to whether Show could
have said “M ichelle did it.”
The PCRA Court held that the
newly offered expert opinions did not
constitute “after discovered evidence,”
which under Pennsylvania law is evidence
that (1) was unavailable at trial, (2) is
exculpatory, and (3) would have changed
the outcome at trial. PCRA Decision 112
(citing Commonwealth v. Reese, 663 A.2d
206 (Pa. Super. 1995)). After a lengthy
discussion of the various expert testimony,
the Court concluded:
No expert has established
that it would have been
impossible for Laurie Show
to speak. In fact, competent
a n d c r e d i b l e e x p e r t
testimony proves in a clear
and convincing way that the
dying declaration w as
possible. No evidence was
presented in 1992 or has
been presented in the PCRA
hearing which would cause
this court to change its
finding that Mrs. Show was
credible in 1992 when she
testified as to her daughter’s
dying declaration.
PCRA Decision 116.
Now, in her habeas petition,
Lambert argues that the Commonwealth’s
conduct at the PCRA hearing with regard
to Show’s dying declaration constitutes a
constitutional violation warranting habeas
relief. Namely, she contends that “[t]he
Commonwealth retained new experts in
the PCRA proceeding and violated ‘the
most basic notions of due process,’ by
proffering new testimony that was based
on disowning the very evidence on which
it had convicted Lambert in 1992.”
Lambert Br. 69.
Of course, labeling a claim as a
“fundamental due process violation” does
not actually substantiate a constitutional
claim. Lambert fails to explain how
conduct at the PCRA hearing could
feasibly warrant habeas relief. Rather, she
simply cites three cases: Dunn v. United
States, 442 U.S. 100 (1979), Smith v.
Groose, 205 F.3d 1045 (8th Cir. 2000), and
Thompson v. Calderon, 120 F.2d 1045 (9th
Cir. 1997), rev’d on other grounds, 523
U.S. 538 (1998).
Indeed, she cites the same three
cases that she contends support her claim
that the Commonwealth’s “switching” of
the sweatpants warrants habeas relief. We
have rejected that claim, and we reject her

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59
dying declaration arguments for the same
reasons. The Commonwealth did not
utilize the allegedly differing expert
testimony to convict Lambert (as in
Sm ith/Thomps on) or uphold her
conviction on direct appeal (as in Dunn).
Rather, the state used the new testimony to
show that Lambert had not offered after-
discovered evidence warranting relief
under the PCRA statute. See Gattis, 278
F.3d at 238. And in any case the
Commonwealth’s conduct at the PCRA
hearing is not a basis for habeas relief. 42
Even if error in the state collateral
proceedings could support Lambert’s
claim for habeas relief, however, none
would be warranted here. In contrast to
Dunn, Smith, and Thompson, the
government did not offer contradictory
theories or facts at the trial and the PCRA
hearing. The government’s theory at both
proceedings was that Lambert entered
Show’s apartment on December 20, 1991
and participated in the murder. At both
proceedings they offered Hazel Show’s
testimony that Laurie Show said “Michelle
did it.” The government relied on the same
evidence—an autopsy report and
photographs—at both proceedings. The
only inconsistency was in some of the
opinions offered by the government’s
expert witnesses at the trial and PCRA
hearing—though they all agreed on the
ultimate conclusion that Show could speak
the words “Michelle did it”—based on the
same evidence.
6. The DA’s Contact with
Lambert’s Trial Expert
The Commonwealth’s district
attorney (Kenneff) contacted Lambert’s
expert, Dr. Mihalakis, over the weekend
preceding the trial. Lambert contends that
in doing so the Commonwealth violated
her right to due process.
Intimidation or threats from the
government that dissuade a potential
witness from testifying may infringe a
defendant’s Fourteenth Amendment right
to due process and Sixth Amendment right
to compulsory process. See Webb v.
Texas, 409 U.S. 95 (1972); United States
v. Morrison, 535 F.2d 223, 226-27 (3d Cir.
1976); see also United States v.
Bieganowski, 313 F.3d 264, 291 (5th Cir.
2002); Newell v. Hanks, 283 F.3d 827,
837 (7th Cir. 2002); United States v.
Emuegbunam, 268 F.3d 377, 400 (6th Cir.
2001); United States v. Vega-Figueroa,
234 F.3d 744, 751-52 (1st Cir. 2000);
United States v. Vavages, 151 F.3d 1185,
1188 (9th Cir. 1998); United States v.
Saunders, 943 F.2d 388, 392 (4th Cir.
1991); United States v. Pinto, 850 F.2d
927, 932 (2d Cir. 1988). In order to violate
the Constitution, the government’s conduct
must have “substantially interfered” with a
witnesses’s choice to testify. See
Bieganowski, 313 F.3d at 291; Newell,
42 In addition, we are doubtful
whether Lambert has properly exhausted
this claim. This appears to be the first
proceeding where she raised this claim.
We address it nonetheless because it is
meritless and we can therefore dismiss it
under 28 U.S.C. § 2254(b)(2). See Gattis,
278 F.3d at 237.

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60
283 F.3d at 837; Emuegbunam, 268 F.3d
377 at 400; Vavages, 151 F.3d at 1188;
Saunders, 943 F.2d at 392; Pinto, 850
F.2d at 932.
Whether substantial interference
occurred is a factual determination. See
Bieganowski, 313 F.3d at 291; Vavages,
151 F.3d at 1188; Pinto, 850 F.2d at 932.
On direct appeal we review a district
court’s determination regarding substantial
interference for clear error. Here, we apply
the deferential standards of § 2254(d)(2)
and § 2254(e)(1).
The issue of Kenneff’s contact with
Mihalakis came up during the trial.
Lambert filed a motion asking the Court to
sanction the Commonwealth for Kenneff’s
pre-trial contact with Lambert’s expert
witness. Judge Stengel held a hearing in
order to decide Lambert’s motion.
At the hearing, Kenneff indicated
that he was upset upon learning,
approximately a week before trial, that
Mihalakis was going to testify as a defense
witness. Mihalakis was under contract to
work as an expert for Lancaster County,
and Kenneff felt that as a result he would
be unable to discredit Mihalakis at trial.
Kenneff contacted Mihalakis even though
Lambert’s attorney, Roy Shirk, would not
give his consent. Kenneff told Mihalakis
about his concern, and Mihalakis offered
to withdraw if Judge Stengel found that
his contract with the County precluded
him from acting as an expert for Lambert.
Kenneff told him not to withdraw because
it would only cause a continuance.
After Judge Stengel heard from
Shirk, Kenneff, and Mihalakis, the
following colloquy occurred:
THE COURT: [Y]ou’ve
done your examination and
you have your opinions that
you are going to state as
part of this case, I take it.
DR. MIHALAKIS: Yes. I
have a consultative letter.
THE COURT: What is the
date of that letter? About
when was it written to him?
D R . M I H A L A K I S :
(Looking at document.)
June 29.
THE COURT: All right.
And I take it that your
testimony w o u l d be
consistent with that
consultative letter.
DR. MIHALAKIS: I would
hope so, yes.
THE COURT: Okay. Is
there anything about the
discussion you had with Mr.
Kenneff that causes you to
not say what was in that
letter?
DR. MIHALAKIS: No, I
don’t believe so.
THE COURT: Did you feel
threatened or intimidated or
coerced by that discussion
you had with Mr. Kenneff?

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

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

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

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

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given the evidence before it, well within
the bounds of reason.
7. The River Search
After receiving information from
Yunkin and Lambert regarding their
disposal of evidence in the Susquehanna
River, law enforcement officials
conducted a search of the river on
December 21, 1991. The police were
specifically looking for “a pink plastic bag
containing at least one pair of sneakers.”
Appellate App. 1561. They found a knife
and a pink plastic bag. The police video-
taped the search and provided Lambert’s
counsel with an edited version of the tape.
The police conducted another, more
extensive search two days later, on
December 23, 1991. Using a dog
“scented” with Buck’s sweater, the police
found a piece of white nylon rope. The
police also found a sneaker. The December
23 search was not video-taped.
The police did not indicate in any
reports regarding the river searches that
they found a pink bag or a sneaker, nor did
they in any way inform Lambert about the
finds. A police report provided to Lambert
indicated that the rope was found, but it
did not indicate that it was found using a
dog scented with Buck’s sweater.
We discern four arguments of
constitutional error from the unstructured
discussion of the river searches in
Lambert’s brief. First, Lambert argues that
the government violated Brady by failing
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,
she argues that the government violated
Brady by failing to inform Lambert that
the rope was found using a dog scented
with Buck’s sweater. Finally, Lambert
appears to argue that the government
violated her due process rights by
destroying exculpatory evidence (the pink
bag and sneaker) prior to trial.
a. Brady Violation
Concerning the Pink Bag
and Sneaker
Again, to make out a Brady
violation Lambert must show that (1) the
government withheld evidence, either
willfully or inadvertently; (2) the evidence
was favorable, either because it was
exculpatory or of impeachment value; and
(3) the withheld evidence was material.
See Banks, 124 S. Ct. at 1272. The PCRA
Court found that the pink bag was not
exculpatory and that, in any case, the
police did not withhold the pink bag’s
discovery from Lambert. With respect to
the sneaker, the Court found that it was not
exculpatory. Once again, the PCRA
Court’s determinations were reasonable.43
43 Throughout this decision we
have found the PCRA Court’s factual
determinations to be “reasonable,” which
is the standard that we must apply under
AEDPA. We note, however, that

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

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

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

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

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The writ of habeas corpus, as
implemented by the statute, empowers a
federal court to overturn a state conviction
only when it is contrary to federal law or
an unreasonable application of law or
determination of the facts. Comity and
finality, as embodied in the statute and
emphasized by the Supreme Court,
mandate considerable deference to the
determination of the state fact-finder and
appellate courts.
Regrettably, the initial habeas
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
and finality mandated by the statute. We
agree with Judge Brody that Lisa Michelle
Lambert was not “actually innocent,” and
was not the victim of a miscarriage of
justice or gross prosecutorial misconduct.
A careful, dispassionate review of the
entire record convincingly demonstrates
that Lambert’s trial was fair,
constitutionally correct, and well-
supported by the evidence. Accordingly,
there is no reason to disturb the
conviction. We will affirm Judge Brody’s
denial of the writ.

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