Moses Villot v. Benjamin Varner

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No.:01-1505
______________
MOSES VILLOT,
Appellant
v.
BENJAMIN VARNER; THE DISTRICT
ATTORNEY OF
THE COUNTY OF PHILADELPHIA;
THE ATTORNEY
GENERAL OF THE STATE OF
PENNSYLVANIA
________________
Appeal from the United States
District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No.
00-cv-05512)
District Judge: Honorable Eduardo C.
Robreno
Argued on October 15, 2003
Before: SLOVITER, ROTH and
STAPLETON, Circuit Judges
(Opinion filed June 30, 2004 )
Stephen J. Binhak, Esquire (Argued)
3103 Philmont Avenue
Huntingdon Valley, PA 19106
Counsel for Appellant
Marilyn F. Murray (Argued)
Assistant District Attorney
Robert M. Falin
Assistant District Attorney
Thomas W. Dolgenos
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney
Arnold H. Gordon
First Assistant District Attorney
Lynn Abraham
District Attorney
Office of District Attorney
1421 Arch Street
Philadelphia, PA 19102
Counsel for Appellees
O P I N I O N
ROTH, Circuit Judge
Moses Villot pled guilty to a
general murder charge in exchange for an
agreement by the Commonwealth of
Pennsylvania not to seek the death penalty.
At the sentencing hearing in the Court of
Common Pleas, Villot was found to have

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committed first degree murder and he was
sentenced to life in prison. The present
appeal is from the denial of Villot’s § 2254
petition for writ of habeas corpus, based
on three claims that his plea counsel
provided ineffective assistance. Villot had
unsuccessfully urged one of these claims
on direct appeal and all three of them in
his state petition for collateral relief. The
District Court held that the two claims not
presented until Villot’s state collateral
proceeding were procedurally defaulted
because Villot failed to satisfy 42 Pa.
Cons. Stat. § 9543(a)(2)(iii), which
requires petitioners seeking collateral
relief from guilty pleas to plead and prove
their innocence. The District Court also
held that the claim Villot presented on
direct appeal was procedurally defaulted
because Villot had failed to seek review in
the Pennsylvania Supreme Court and
would now be time-barred from doing so.
A motions panel of this court
granted a certificate of appealability asking
counsel to specifically address whether the
innocence provision in § 9543(a)(2)(iii) is
an independent and adequate state
procedural ground. We now hold that this
provision is a substantive requirement
rather than a procedural rule and cannot,
therefore, give rise to a procedural default
of Villot’s federal claims. Under federal
law, proof of innocence is not a
prerequisite to relief from a guilty plea.
The Commonwealth of Pennsylvania has,
however, tacked on an innocence
provision as a substantive element
necessary to prove in order to obtain relief
from a guilty plea. But a state cannot add
a substantive element to the proof
necessary to obtain federal relief. A
habeas petitioner’s inability to meet more
restrictive state standards for relief cannot
result in a forfeiture of his federal
constitutional claims. Accordingly, we
conclude that these two collateral relief
claims were not procedurally defaulted.
We further hold that Villot’s third
ineffective assistance claim is not
defaulted. Although Villot did not fully
exhaust this claim on direct appeal, he did
fully exhaust all three claims by
petitioning the Pennsylvania Supreme
Court for review of the Superior Court’s
denial of collateral relief. Thus, Villot has
invoked “one complete round” of the
normal state appellate review process with
respect to each claim.1 O’Sullivan v.
1 An argument could be made that
Villot’s third ineffective assistance claim
is defaulted, as was determined by the
Motions Panel in granting a certificate of
appealability on only the first two claims.
Because Villot pursued the issue in the
third claim to a further extent in his
direct appeal (i.e., the Superior Court
considered the ineffective assistance of
counsel claim on the merits of the
conflict of interest issue rather than
simply dismissing for failure to plead and
prove actual innocence) than he did in
his PCRA petition, and then did not seek
review of this determination by the
Pennsylvania Supreme Court, the third
claim could have been dismissed on
collateral review under 42 Pa. Const.

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3
Boerckel, 526 U.S. 838, 845 (1999).
Accordingly, we will reverse the judgment
of District Court and remand this case for
consideration of the merits of all of
Villot’s claims.
II. Facts and Procedural History
In October 1990, Moses Villot pled
guilty in the Pennsylvania Court of
Common Pleas to the murder of his
brother-in-law. Following a degree of
guilt hearing, Villot was found guilty of
first-degree murder and sentenced to a
mandatory term of life imprisonment.2
Shortly thereafter, Villot, represented by
new counsel, filed a timely motion to
withdraw his guilty plea, principally
arguing that his plea counsel provided
ineffective assistan ce. Fo llowin g
evidentiary hearings in October 1991, the
Court of Common Pleas denied Villot’s
motion. Villot appealed to the Superior
Court, arguing, inter alia, that his plea
counsel provided ineffective assistance at
the degree of guilt hearing due to a conflict
of interest. Villot claimed that two of his
plea counsel’s former clients were the
murder victim and the only eye-witness
called by the prosecution at the degree of
guilt hearing. The Superior Court denied
the appeal and Villot did not seek review
in the Pennsylvania Supreme Court.
In January 1997, Villot filed a pro
se petition for collateral relief under
Pennsylvania’s Post-Conviction Relief Act
(PCRA), 42 Pa. Cons. Stat. § 9541 et seq,
claiming that his plea counsel’s ineffective
assistance “undermined the truth -
determining process” per § 9543(a)(2)(ii)
and “unlawfully induced” his guilty plea
per § 9543(a)(2)(iii).3 Counsel was
Stat. § 9543(a)(3), as having already
been litigated. The Superior Court did
not, however, dismiss the third claim on
this ground and, therefore, for the
reasons we state in Section IV.C, infra,
because the state court did not rely on the
“already litigated” ground for dismissal,
we will not do so in this appeal as a part
of our consideration of default.
2 Villot also pled guilty to two
weapons offenses. His terms of
imprisonment for these crimes run
concurrently with his life sentence for
murder.
3 The PCRA provides that a
petitioner is eligible for relief if he pleads
and proves by a preponderance of the
evidence:
(2) That the conviction or
sentence resulted from one
or more of the following:
. . .
(ii) Ineffective assistance
of counsel which, in the
circumstances of the
particular case, so
undermined the truth-
determining process that no
reliable adjudication of
guilt or innocence could
have taken place.
(iii) A plea of guilty

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4
appointed to represent Villot, but filed a
no-merit letter per Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. Ct.
1988). The Court of Common Pleas
dismissed Villot’s petition without opinion
and allowed appointed counsel to
withdraw.
The Superior Court granted Villot
the right to appeal this decision nunc pro
tunc. Villot raised three ineffective
assistance claims on appeal. First, he
claimed his plea counsel coerced him into
pleading guilty. Second, he claimed that
his plea counsel failed to adequately
interview him prior to advising him to
plead guilty. Finally, he reiterated the
conflict of interest claim described above.
In July 1999, the Superior Court affirmed
the dismissal of his PCRA petition. The
court noted that, pursuant to a 1995
amendment, the PCRA now requires a
petitioner seeking relief from his guilty
plea to show not only that the plea was
“unlawfully induced” but also that he is
innocent. 42 Pa. Const. Stat. §
9543(a)(2)(iii). The court held that
Villot’s claims were “not cognizable”
under this section because Villot had failed
to assert his innocence. The court further
noted that Villot admitted facts consistent
with his guilty plea in his brief supporting
his PCRA appeal and held that
“[o]bviously, Appellant is not innocent.”4
In November 1999, the Pennsylvania
Supreme Court denied Villot’s petition for
allowance of appeal.
In October 2000, Villot filed a 28
U.S.C. § 2254 petition in the Eastern
District of Pennsylvania, alleging the same
three ineffective assistance claims he had
raised in his PCRA appeal. The
Magistrate Judge held that Villot’s first
two claims were procedurally defaulted
based on the Superior Court’s holding that
Villot’s claims were “not cognizable.”
The Magistrate Judge held, however, that
Villot’s third claim was insulated from the
Superior Court’s holding because that
claim was properly exhausted on direct
appeal. The Magistrate Judge noted that
Villot failed to petition the Pennsylvania
Supreme Court following the Superior
Court’s denial of his direct appeal, but
held that this was no longer a required step
in the exhaustion process for habeas cases
arising in Pennsylvania. The Magistrate
Judge cited In re: Exhaustion of State
unlawfully induced where
the circumstances make it
likely that the inducement
caused the petitioner to
plead guilty and the
petitioner is innocent.
42 Pa. Cons. Stat. § 9543(a)(2).
4 While the Superior Court did not
explicitly address Villot’s request for
relief under the § 9543(a)(2)(ii)
ineffective assistance of counsel
provision, Villot’s desire to withdraw his
guilty plea was based on ineffective
assistance of counsel. Thus, the Superior
Court’s ruling necessarily implied that
Villot’s claim was also not cognizable
under § 9543(a)(2)(ii).

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Remedies in Criminal and Post-Conviction
Relief Cases, No . 218 J udicia l
Administration Docket No. 1 (Pa. M ay 9,
2000) (Order 218) of the Pennsylvania
Supreme Court, which provides that “in all
appeals from criminal convictions . . . 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.” See Wenger v. Frank, 266
F.3d 218, 224-25 (3d Cir. 2001) (citing
Order 218). Accordingly, the Magistrate
Judge considered Villot’s conflict of
interest claim on the merits, and ultimately
recommended that the claim be denied.
The District Judge adopted the
M a g i s t r a t e J u d g e ’ s r ep o r t a n d
recommendation with respect to the first
two claims but held that the conflict of
interest claim was also procedurally
defaulted. The District Judge held that
Order 218, issued in May 2000, does not
apply retroactively and therefore did not
apply to Villot’s direct appeal, which was
denied by the Superior Court in May 1993.
See Wenger, 266 F.3d at 226 (holding that
“Order 218 does not apply in cases in
which the time to petition for review by
the state supreme court expired prior to the
date of the order”). The District Judge
concluded, therefore, that Villot’s conflict
of interest claim was procedurally
defaulted because the time to petition the
Pennsylvania Supreme Court had long
since expired. In February 2001, the
District Court dismissed the petition
without reaching the merits.
A motions panel of this court issued
a certificate of appealability per 28 U.S.C.
§ 2253(c) with respect to Villot’s first two
ineffective assistance claims but denied the
certificate with respect to the conflict of
interest claim, holding that this claim was
clearly defaulted. The certificate
specifically sought briefing on whether the
Superior Court’s holding that Villot did
not satisfy § 9543(a)(2)(iii)’s innocence
requirement constitutes “an ‘independent
and adequate’ state law ground
[precluding] review of [Villot’s] federal
claims” under the procedural default rule.
As explained below, our consideration of
Villot’s first two claims requires us also to
reconsider the motions panel’s earlier
conclusion that his conflict of interest
claim was defaulted.
III. Jurisdiction and Standard of
Review
The District Court exercised
jurisdiction over Villot’s habeas petition
under 28 U.S.C. §§ 2241 and 2254. We
have jurisdiction to review the District
Court’s order denying Villot’s petition
under 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s
legal conclusions in a habeas proceeding,
Caswell v. Ryan, 953 F.2d 853, 857 (3d
Cir. 1992), including its resolution of legal
questions arising from application of the
procedural default doctrine. Hull v. Kyler,
190 F.3d 88, 97 (3d Cir. 1999).
IV. Discussion
In our order granting Villot’s

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request for a certificate of appealability we
asked the parties to consider whether the
Superior Court’s holding that Villot did
not satisfy § 9543(a)(2)(iii)’s innocence
requirement constitutes “an ‘independent
and adequate’ state law ground
[precluding] review of [Villot’s] federal
claims.” We no longer need to address
this issue, however, because we now hold
that the innocence provision is substantive
rather than procedural. By definition, the
procedural default rule only applies to state
procedural rules. We further hold that
Villot’s non-compliance with certain state
procedural rules, not discussed by the
District Court, also does not support a
finding of procedural default because the
Superior Court did not rely on these
grounds in concluding that Villot’s claims
were not cognizable under the PCRA.
Finally, we hold that Villot properly
exhausted all of his ineffective assistance
claims in the PCRA proceeding, and
therefore the District Court must consider
the merits of all of them on remand.
A.Because § 9543(a)(2)(iii)’s innocence
requirement is substantive rather than
procedural, it cannot give rise to
procedural default of Villot’s federal
claims.
Under the procedural default rule,
“an adequate and independent finding of
procedural default will bar federal habeas
review of the federal claim, unless the
habeas petitioner can show cause for the
default and prejudice attributable thereto,
or demonstrate that failure to consider the
federal claim will result in a fundamental
miscarriage of justice.” Harris v. Reed,
489 U.S. 255, 262 (1989) (internal
citations omitted). Villot does not claim
that the “cause and prejudice” or
“fundamental miscarriage of justice”
exceptions excuse his failure to allege and
prove his innocence in his PCRA
p r o c e e d i n g a s r e q u ir e d b y §
9543(a)(2)(iii). Further, Villot does not
claim, and there is no basis to speculate,
that the Superior Court’s holding was
interwoven with or based on federal law; it
is clear that the state court ruling was
“independent.” Rather, the parties focus
almost exclusively on whe ther §
9543(a)(2)(iii)’s innocence clause is
“adequate” to support the Superior Court’s
judgment. See Szuchon v. Lehman, 273
F.3d 299, 325 (3d Cir. 1999) (stating that
a procedural rule is adequate only if it is
“firmly established, readily ascertainable,
and regularly followed”) (citing Ford v.
Georgia, 498 U.S. 411, 423-24 (1991)).
We need not reach this issue, however,
because we now hold that the innocence
clause is a substantive requirement, not a
procedural rule, and therefore cannot give
rise to a procedural default.
Before 1995, § 9543(a)(2)(iii)
required a PCRA petitioner challenging
the validity of his guilty plea to “plead and
prove” that his plea was “unlawfully
induced where the circumstances make it
likely that the inducement caused him to
plead guilty.” See Commonwealth v.
Banks, 656 A.2d 467, 470 (Pa. 1995)
(quoting former provision). Following the
1995 amendment to this provision, the
petitioner must now also “plead and

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prove” that circumstances make it likely
that “the petitioner is innocent.” 42 Pa.
C o n s . S t a t . § 9 5 4 3 ( a ) ( 2 ) ( i i i ) ;
Commonwealth v. Michael, 755 A.2d
1274, 1277 (Pa. 2000) (citing current
provision). This clause plainly adds a
substantive element to Pennsylvania’s test
for obtaining collateral relief from guilty
pleas. Substantive law “creates, defines,
and regulates rights and duties of parties.”
Black’s Law Dictionary 1429 (6th ed.
1990). In contrast, procedural law
“prescribes method[s] of enforcing rights
or obtaining redress for their invasion.”
Id. at 1203. The Pennsylvania legislature
amended the definition of a PCRA
petitioner’s right to collateral relief by
adding a new element, the innocence
requirement.
Granted, given the structure of the
statute defining eligibility for PCRA relief,
any substantive addition creates a
corresponding procedural addition. The
first sentence of the act requires petitioners
to “plead” as well as “prove” certain facts,
including, of course, the claimed error.
See 42 Pa. Cons. Stat. § 9543(a). At oral
argument the state relied on this general
pleading requirement to argue that the
innocence provision is procedural rather
than substantive. Specifically, the state
noted that the Superior Court deemed
Villot’s PCRA appeal “not cognizable”
because he failed to allege his innocence.
First, this argument conflates the pleading
requirement in the first sentence of § 9543
with the innocence requirement at
subsection (a)(2)(iii); the fact that the
former rule is procedural does not change
the substantive nature of the latter
requirement. Second, the state implies that
Villot could have satisfied the innocence
requirement simply by asserting his
innocence with no intention of actually
demonstrating his lack of guilt. We reject
this bizarre position, which ignores the
plain language of the statute and would
reduce the innocence requirement to a
meaningless formality. Finally, the state
ignores the remainder of the Superior
Court’s opinion, in which the court noted
certain admissions in Villot’s brief and
held that Villot was “[o]bviously . . . not
innocent.” Thus, the Superior Court
reached the merits of Villot’s claim by
holding that he could not satisfy the
innocence requirement.
Furthermore, the innocence
requirement makes Pennsylvania’s test for
evaluating ineffective assistance claims
related to guilty pleas more restrictive than
the federal test.5 A § 2254 petitioner who
5 We note that ineffective
assistance claims based on the
performance or advice of plea counsel
may now be raised in PCRA proceedings
under subsection (a)(2)(ii), which does
not require assertion or proof of
innocence. At the time of the Superior
Court’s ruling on Villot’s PCRA appeal
in July 1999, however, Pennsylvania’s
lower courts had consistently held that
ineffective assistance claims relating to
guilty pleas were not cognizable under
subsection (a)(2)(ii) because guilty pleas
did not implicate the “truth-determining

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claims that his counsel’s ineffective
assistance caused him to enter an
involuntary or unknowing plea may obtain
collateral relief regardless of whether he
asserts or proves his innocence. To
prevail, the petitioner must establish “that
(i) his or her counsel’s representation fell
below an objective standard of
reasonableness demanded of attorneys in
criminal cases; and (ii) there is a
reasonable probability that, but for
counsel’s errors, he or she would have
proceeded to trial instead of pleading
guilty.” United States v. Nahodil, 36 F.3d
323, 326 (3d Cir. 1994) (citing Hill v.
Lockhart, 474 U.S. 52, 59 (1985)). In
Nahodil, we indicated that a petitioner’s
past assertions of innocence may help
substantiate his claim that he would have
proceeded to trial but for his counsel’s
errors, 36 F.3d at 326-27, but we have
never suggested that a failure to assert or
prove innocence precludes a finding of
prejudice. Thus, by requiring a PCRA
petitioner to “plead and prove” his
innocence to obtain collateral relief from
his guilty plea, subsection 9543(a)(2)(iii)
tacks on an additional substantive element
on top of those required by federal law.
The procedural default rule is an
application of the independent and
adequate state ground doctrine. See
Coleman v. Thompson, 501 U.S. 722, 729-
30 (1991). Under this doctrine, federal
courts “will not review a question of
federal law decided by a state court if the
decision of that court rests on a state law
ground that is independent of the federal
question and adequate to support the
judgment.” Id. at 729 (citations omitted).
While the independent and adequate state
ground doctrine applies whether the state
law ground is substantive or procedural,
id., the procedural default rule applies, by
definition, only to procedural rules. “The
[procedural default] doctrine applies to bar
federal habeas when a state court declined
to address a prisoner’s federal claims
because the prisoner had failed to meet a
state procedural requirement. In these
cases, that state judgment rests on
process.” See Commonwealth v.
Woodrow, 743 A.2d 458, 460 (Pa. Super.
Ct. 1999); Commonwealth v.
Laszczynski, 715 A.2d 1185, 1187-88
(Pa. Super. Ct. 1998); Commonwealth v.
Shekerko, 639 A.2d 810, 813 (Pa. Super.
Ct. 1994). The Superior Court’s decision
in Villot’s case explicitly relied on
Laszczynski, and the Pennsylvania
Supreme Court denied Villot’s petition
for allowance of appeal. However,
though too late to help Villot, the court
later overruled this line of decisions in
Dadario v. Goldberg, holding that
subsection (a)(2)(ii) encompassed “all
constitutionally-cognizable claims of
ineffective assistance of counsel,”
including ineffective assistance claims
related to the defendant’s decision to
plead guilty or not. 773 A.2d 126, 127-
28, 130-31 (Pa. 2001); see also
Commonwealth v. Hickman , 799 A.2d
136, 141 (Pa. Super. Ct. 2002) (holding
that PCRA will afford relief if ineffective
assistance of counsel caused defendant to
enter involuntary guilty plea).

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9
independent and adequate procedural
grounds.” Id. (emphases added). This
distinction between procedural and
substantive rules is perfectly consistent
with the procedural default rule’s
rationale, which is that state courts should
not be deprived of an opportunity to
correct their own errors by the habeas
petitioner’s failure to abide by the state’s
reasonable procedural rules:
Just as in those cases in
which a state prisoner fails
to exhaust state remedies, a
habeas petitioner who has
failed to meet the State’s
procedural requirements for
presenting his federal claims
has deprived the state courts
of an opportunity to address
those claims in the first
instance.
Id. at 731-32 (emphasis added); see also
Rose v. Lundy, 455 U.S. 509, 518-19
(1982) (articulating similar rationale).
How ever, when a state tacks on
substantive additions to federal claims, it is
the state itself that has forfeited its
opportunity to consider the federal claims
of the class of petitioners who cannot
satisfy the additional state-created
s u b s t a n t iv e r e q u i r e m e n t . T h e
considerations of comity and federalism
underlying the procedural default rule have
no application in such cases. See
Coleman, 501 U.S. at 730 (explaining that
application of independent and adequate
state ground rule in habeas is grounded in
comity and federalism concerns, not
jurisdictional limits).
In fact, an interpretation of the
procedural default rule that extended to
state substantive restrictions on federal
claims would violate the supremacy
clause. See U.S. Const. art. VI. The states
have no obligation to provide collateral
relief to convicted criminals at all, see
Pennsylvania v. Finley, 481 U.S. 551, 557
(1987) (citation omitted), and the relief
they elect to provide need not be co-
extensive with that provided by federal
statutory or constitutional law. Thus, the
Pennsylvania legislature was free to set a
higher bar for collateral relief from guilty
pleas than federal law provides.6 A
holding that the procedural default rule
applies in this case, however, would
effectively impose Pennsylvania’s extra-
constitutional restrictions on collateral
relief on federal habeas proceedings
despite 28 U.S.C. § 2254(a), which
authorizes relief whenever a prisoner is
held in custody “in violation of the
Constitution or laws or treaties of the
United States.”
Accordingly, we do not need to
determine whether the Superior Court’s
application of § 9543(a )(2)(iii)’s
innocence requirement satisfies the
“independent and adequate” state ground
test because, even assuming it does, it
6 Of course, the scope of relief
provided must be consistent with the
state’s own constitutional law, but that
issue is not before the court.

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10
cannot foreclose federal habeas review of
Villot’s ineffective assistance claims.
B.Villot’s habeas petition is not
procedurally defaulted because of his
non-compliance with § 9543(a)(3).
Section 9543(a)(2)(iii) provided a
substantive basis for the Superior Court’s
holding that Villot’s claims were “not
cognizable” under the PCRA. However, it
appears that the Superior Court could have
also denied relief on procedural grounds.
Specifically, the court could have held that
Villot failed to comply with 42 Pa. Const.
Stat. § 9543(a)(3), which provides that a
PCRA petitioner must plead and prove
“[t]hat the allegation of error has not been
previously litigated or waived.”7 Although
the state does not rely on § 9543(a)(3)
directly, in both its brief and at oral
argument it placed great emphasis on its
contention that Villot waived two of his
ineffective assistance claims by failing to
raise them prior to his PCRA proceeding.
We treat this as an argument that Villot’s
claims should be considered procedurally
defaulted under § 9543(a)(3), but we reject
this argument because the Superior Court
did not rely on § 9543(a)(3) in denying
Villot’s PCRA appeal.
First, it seems clear that the
Superior Court could have held that some
or all of Villot’s PCRA claims were either
previously litigated or waived. There is no
doubt that Villot’s conflict of interest
claim was previously litigated in both
Villot’s motion to withdraw his guilty plea
and on direct appeal. Next, Villot’s claim
that his plea counsel failed to adequately
interview him and investigate his case
could have been deemed waived by the
Superior Court because it was not raised
before the trial court or on direct appeal.8
7 A claim has been previously
litigated if “the highest court in which
the petitioner could have had review as a
matter of right has ruled on the merits of
the issue.” 42 Pa. Cons. Stat. §
9544(a)(2). A claim has been waived “if
the petitioner could have raised it but
failed to do so before trial, at trial, during
unitary review, on appeal or in a prior
state postconviction proceeding.” Id. at §
9544(b).
8 Until recently, defendants in
Pennsylvania had to raise any ineffective
assistance claims “at the earliest stage in
the proceedings at which the counsel
whose effectiveness is being challenged
no longer represents the defendant,” or
else these claims would be considered
waived. Commonwealth v. Hubbard,
372 A.2d 687, 695 n.6 (Pa. 1977).
Because Villot obtained new counsel
before he made his motion to withdraw
his guilty plea, he was obligated to raise
any ineffective assistance claims in that
motion. The Pennsylvania Supreme
Court overruled Hubbard in 2002,
holding that “as a general rule, a
petitioner should wait to raise claims of
ineffective assistance of trial counsel
until collateral review.” Commonwealth
v. Grant, 813 A.2d 726, 738 (Pa. 2002).

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11
Finally, with respect to Villot’s claim that
his plea counsel coerced him into pleading
guilty, the state argues that this is just a
variation on his conflict of interest claim.9
If the state is correct, this claim could also
have been deemed “previously litigated.”
If the state is incorrect and this claim is
considered distinct, the Superior Court
might have held that this claim was waived
because Villot did not raise it in his motion
to withdraw his guilty plea or on direct
appeal.
Thus, if the Superior Court had
barred review of some or all of Villot’s
claims on the basis of § 9543(a)(3) rather
than, or in addition to, its ruling based on
§ 9543(a)(2)(iii), it could be argued that
the procedurally barred claims were
defaulted for purposes of federal habeas
review.10 However, “a federal claimant’s
procedural default precludes federal
habeas review . . . only if the last state
court rendering a judgment in the case
rests its judgment on the procedural
default.”11 Harris v. Reed, 489 U.S. 255,
“Thus, any ineffectiveness claim will be
waived only after a petitioner has had the
opportunity to raise that claim on
collateral review and has failed to avail
himself of that opportunity.” Id. The
court also held that the new rule would
be applied retroactively to cases currently
pending on direct appeal in which
ineffective assistance claims had been
raised and preserved, but not to cases
pending on collateral review. Id. at 738-
39 & n.16. Of course, Villot’s direct and
collateral state proceedings had long
been closed by the time Grant was
issued, so the new rule has no application
here.
9 Villot’s counsel does not explain
the basis of this claim in his briefing to
this court, but the gist of the claim can be
gleaned from Villot’s pro se brief in the
district court and the Magistrate Judge’s
report and recommendation. Villot
claims that his plea counsel pressured
him to plead guilty so that counsel could
avoid cross-examining Adam Romero,
the chief prosecution witness and
counsel’s former client, at trial. If this is
the extent of Villot’s claim, it is simply a
re-statement of Villot’s conflict of
interest claim. The Pennsylvania
Supreme Court has held that the
“previously litigated” prong of
subsection (a)(3) bars simple variations
of previously litigated claims as well as
the exact claims themselves. See
Commonwealth v. Carpenter, 725 A.2d
154, 166-67 (Pa. 1999) (citation
omitted).
10 This statement is qualified
because we cannot and need not
definitively state that Villot could not
have raised any valid objections to
application of the procedural default rule
had the Superior Court relied on §
9543(a)(3) to deny his PCRA appeal.
11 This rule is inapplicable where the
state court has not been presented with
the federal claim. Harris, 489 U.S. at
263 n.9. In that event, the federal habeas

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12
262 (1989) (emphasis added). If the state
court does not actually enforce the
procedural rule in question, the “federal
court implies no disrespect for the state by
entertaining the claim.” County Court of
Ulster County, N.Y. v. Allen, 442 U.S. 140,
154 (1979); see also Smith v. Freeman,
892 F.2d 331, 336 (3d Cir. 1989) (relying
on Harris and Ulster to hold that a claim
was not procedurally barred under a
certain state procedural rule where the
Pennsylvania courts did not rely on this
rule and addressed the merits of the
petition instead). The Superior Court’s
opinion rejecting Villot’s PCRA appeal
rests exclusively on subsection (a)(2)(iii),
and does not mention § 9543(a)(3) or any
other procedural basis for its ruling.12
Under the presumption established in Ylst
v. Nunnemaker, 501 U.S. 797, 803 (1991),
the Pennsylvania Supreme Court’s refusal
to review the Superior Court’s order is
presumed to rest on the same ground.
Comity does not require, nor would it
justify, any endeavor by this Court to
substitute an unmentioned procedural
ground in place of subsection (a)(2)(iii) in
order to hold Villot’s claims procedurally
defaulted in federal court.
C.Villot’s conflict of interest claim was
not defaulted because of the manner in
which it was concluded by the state in
the PCRA proceeding.
In its order granting Villot’s
certificate of appealability with respect to
two of his ineffective assistance claims,
the motions panel denied the certificate
with respect to his ineffective assistance
claim based on an alleged conflict of
interest. The motions panel agreed with
the District Court that this claim was
procedurally defaulted because Villot
failed to fully exhaust it on direct appeal
by seeking review in the Pennsylvania
Supreme Court and would now be time-
barred from doing so. That ruling,
however, failed to account for the fact that
Villot presented this same claim, along
with his other two ineffective assistance
claims, to Pennsylvania’s highest court
following the Superior Court’s denial of
his PCRA appeal. We now hold that all
three of Villot’s ineffective assistance
claims were properly exhausted during the
court may hold the claim procedurally
defaulted “if it is clear that the state court
would hold the claim procedurally
barred.” Id. But since the PCRA courts
were presented with Villot’s federal
claims, the Harris rule and not its
exception applies.
12 In contrast, in Cabrera v. Barbo,
175 F.3d 307, 310-13, (3d Cir. 1999),
the case principally relied on by the state
at oral argument, the New Jersey state
courts explicitly relied on a state waiver
rule in denying a prisoner’s state petition
for post-conviction relief. Therefore,
Cabrera’s holding that the prisoner’s
claims were procedurally defaulted in
federal court is inapplicable to the instant
case.

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13
PCRA proceedings.13 Before a federal court may grant a
§ 2254 habeas petition, the state prisoner
must exhaust his available state court
remedies. 28 U.S.C. § 2254(b)(1);
O’Sullivan, 526 U.S. at 842. “The
exhaustion doctrine is designed to give the
state courts a full and fair opportunity to
resolve federal constitutional claims before
those claims are presented to the federal
courts.” Id. at 845. The prisoner typically
exhausts his federal claims by fairly
presenting each claim at each stage of the
state’s established appellate review
process. Id. However, when the state
refuses to consider the merits of the
prisoner’s claims because the petitioner
has failed to comply with the state’s
procedural requirements, his claim is
nonetheless technically exhausted because
“there is an absence of available State
corrective process,” 28 U .S.C . §
2254(b)(1)(B)(I), despite the fact that the
petitioner has “deprived the state courts of
an opportunity to address [the federal]
claims in the first instance. Coleman, 501
U.S. at 732. Thus, the procedural default
rule avoids frustration of the purpose
behind the exhaustion requirement by
13 We may not consider issues on
appeal that are not within the scope of
the certificate of appealability (COA).
28 U.S.C. § 2253(c)(3); Third Circuit
Local Appellate Rule 22.1(b); Miller v.
Dragovich, 311 F.3d 574, 577 (3d Cir.
2002); Hiivala v. Wood, 195 F.3d 1098,
1102-03 (9th Cir. 1999). However, the
merits panel may expand the scope of the
COA beyond the scope announced by the
motions panel. See 3d Cir. LAR 22.1(b);
Hiivala, 195 F.3d at 1103-04 (explaining
that the “law of the case” doctrine does
not preclude the merits panel from
expanding the scope of a COA granted
by the motions panel because the proper
scope of a COA is a jurisdictional issue).
The fact that Villot did not request
expansion is not controlling — the merits
panel may expand the COA sua sponte.
See 3d Cir. LAR 22.1(b) (contemplating
sua sponte expansion); United States v.
Morgan, 244 F.3d 674, 675 (8th Cir.
2001) (en banc) (holding that Eighth
Circuit hearing panel may “consider sua
sponte issues beyond those specified in a
certificate of appealability, whether the
certificate was issued by a district court
or by an administrative panel of [the
Eighth Circuit]”); cf. Robinson v.
Johnson, 313 F.3d 128, 133 (3d Cir.
2002) (citing Dunn v. Colleran, 247 F.3d
450, 456 (3d Cir.2001), for the
proposition that a district court may grant
a COA sua sponte). Accordingly, we
exercise our discretion to expand the
COA to cover Villot’s conflict of interest
claim. We note that while our expansion
of the COA in this case is technically sua
sponte because Villot did not ask us to
revisit the motion panel’s ruling denying
the COA as to his conflict of interest
claim, the effect of our revision is simply
to consider each of Villot’s claims on the
basis of the same legal theory, not to
include a new issue not envisioned by the
parties.

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14
precluding federal review of procedurally
barred claims unless the petitioner can
establish “cause and prejudice” or a
“fundamental miscarriage of justice” to
excuse the procedural default. Id.;
Whitney v. Horn, 280 F.3d 240, 250 (3d
Cir. 2002) (citation omitted).
The District Court correctly ruled
that Villot did not fully exhaust his conflict
of interest claim on direct appeal because
he did not petition the Pennsylvania
Supreme Court for review of the Superior
Court’s denial of his appeal.14 However,
Villot presented both this claim and his
other two claims to the Pennsylvania
Supreme Court following the Superior
Court’s denial of his PCRA appeal. A
prisoner is only required to invoke “one
complete round” of the state’s established
appellate process to satisfy the exhaustion
requirement, O’Sullivan, 526 U.S. at 845
(emphasis added), and Villot did so during
his PCRA proceedings.
If § 9543(a)(2)(iii)’s innocence
provision were procedural rather than
substantive, then the District Court’s
ruling would have been correct. As
explained above, a procedurally barred
claim is technically exhausted but not
properly exhausted because the state
courts are not given a fair opportunity to
address the federal claim on the merits.
See O’Sullivan, 526 U.S. at 848. If §
9543(a)(2)(iii)’s innocence provision were
a procedural bar then Villot would have
lost his only opportunity to properly
exhaust his federal claims when he failed
to petition the state’s highest court
following his direct appeal. Because we
have held that this provision is substantive,
however, see supra Part IV.A., and
because the Superior Court did not deny
Villot’s PCRA appeal on any procedural
ground, see supra Part IV.B., we hold that
Villot properly exhausted his ineffective
assistance claims by presenting them to the
state’s highest court during his PCRA
proceedings.
V. Conclusion
For the reasons stated above, we
will reverse the District Court’s dismissal
of Villot’s habeas petition and remand this
14 In O'Sullivan the Supreme Court
held that AEDPA’s exhaustion
provisions require state prisoners to “file
petitions for discretionary review when
that review is part of the ordinary
appellate review procedure in the State.”
526 U.S. at 847. In May 2000 the
Supreme Court of Pennsylvania issued
Order 218 which endeavored to eliminate
petitions for discretionary review from
the ordinary appellate review procedure.
See Wenger v. Frank, 266 F.3d 218, 220,
224-25 (3d Cir. 2001) (providing text of
Order 218). As was the case in Wenger,
we need not consider the effect of Order
218 on AEDPA’s exhaustion
requirement in this case because Villot’s
time to petition for discretionary review
elapsed years before the date of the
order. See 266 F.3d at 226 (“Order 218
does not apply in cases in which the time
to petition for review by the state
supreme court expired prior to the date of
the order.”)

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15
case for consideration of the merits of all
three of Villot’s claims.15
15 The state has invited us to address
the merits of Villot’s claims in the first
instance on appeal should we decide, as
we have, that Villot’s claims were not
defaulted. The state argues that we have
the power to address the merits in the
first instance under 28 U.S.C. §
2254(b)(2), which authorizes federal
courts to deny habeas petitions on the
merits “notwithstanding the failure of the
applicant to exhaust the remedies
available in the courts of the State.”
Although § 2254(b)(2) does not, by its
terms, apply to the procedural default
context, in Hameen v. Delaware, 212
F.3d 226, 251-52 (3d Cir. 2000), we
relied on this section to reach the merits
of a habeas petition rather than consider
whether the issue had been procedurally
defaulted in the state courts. However,
we need not decide whether we can or
should follow the state’s suggestion,
because the record on appeal is
insufficient to permit a thorough review
of Villot’s claims. We have not been
provided with a transcript of the
evidentiary hearing held in the Superior
Court on Villot’s motion to withdraw his
guilty plea. Further, the transcript of the
degree of guilt hearing is incomplete —
specifically, the pages of the transcript
containing the testimony of Adam
Romero, witness for the prosecution and
Villot’s plea counsel’s former client, are
missing.

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