IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 97-1281, 97-1283 and 97-1287

LISA MICHELLE LAMBERT,

Appellee v.

MRS. CHARLOTTE BLACKWELL, SUPERINTENDENT,

EDNA MAHAN CORRECTIONAL FACILITY FOR WOMEN,

DISTRICT ATTORNEY OF LANCASTER COUNTY, AND

ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA,

Appellants

BRIEF OF THE COMMONWEALTH OF PENNSYLVANIA, ET AL.,

AS AMICI CURIAE IN SUPPORT OF APPELLANTS

Appeal for the Order of the United States District Court for the Eastern District

of Pennsylvania Entered on April 27, 1997 Granting Writ of Habeas Corpus

at Civil Action No.96-6244

D. MICHAEL FISHER

Attorney General of Pennsylvania

JEROME T. FOERSTER

Senior Deputy Attorney General

Appeals and Legal Services Section

* ROBERT A. GRACI

Assistant Executive Deputy Attorney General

Law and Appeals

16th Floor, Strawberry Square

Harrisburg, Pennsylvania 17120

(717) 787-6348

*Counsel of Record

[additional counsel listed on inside cover]

DANIEL E. LUNGREN

Attorney General of California

1300 I Street, Suite 125

Sacramento, CA 95814

(916) 324-5437

M. JANE BRADY

Attorney General of Delaware

820 North French Street

Wilmington, DE 19801

(302) 577-3838

RICHARD P. IEYOUB

Attorney General of Louisiana

P.O. Box 94095

Baton Rouge, LO 70804-9095

(504) 342-7013

W.A. DREW EDMONDSON

Attorney General of Oklahoma

2300 North Lincoln Boulevard, Suite 112

Oklahoma City, OK 731054894

(405) 521-3921

CHARLES M. CONDON

Attorney General of South Carolina

P.O. Box 11549

Rembert C. Dermis Building

Columbia, SC 29211-1549

(803) 734-3970

TABLE OF CONTENTS

Page

TABLE OF CITATIONS ii

INTEREST OF THE AMICI CURIAE 1

SUMMARY OF ARGUMENT 2

ARGUMENT 4

I. The District Court Wrongly Excused Lambert's Failure To Exhaust Her

State Remedies 4

II. A Finding Of "Actual Innocence" May Not Serve As A Basis For

Prohibiting A Retrial Of Lambert In State Court 12

III. A Dismissal For Want Of Exhaustion Is Without Prejudice 16

CONCLUSION 17

TABLE OF CITATIONS

CASES Page(s)

Barry v. Brower,

864 F.2d 294 (3d Cir. 1988) 15

Brown v. Duchene,

l9 How. 183 (1857) 9

Carter v. Vaughn,

62 F.3d 591 (3d Cir. 1996) 6

Christy v. Horn,

___F.3d ___, No.96-9004 (3d Cir. filed June 5, 1997) 5, 10, 12, 16

Coit Independence Joint Venture v. Federal Savings and Loan Insurance Corporation,

489 U.S. 561 (1989) 9

Commonwealth v. Smith,

532 Pa. 177, 615 A.2d 321 (1992) 6

Darr v. Burford

339 U.S. 200 (1950) 7

Doctor v. Walters,

96 F.3d 675 (3d Cir. 1996) 6

Ex parte Quirin,

317 U.S. 1 (1942) 15

Felker v. Turpin,

___ U.S. ___, 116 S.Ct. 2333 (1996) 16

Granberry v. Greer,

481 U.S. 129 (1987) 7, 8, 10

Herrera v. Collins,

506 U.S. 390 (1993) 14

Homma v. Patterson,

327 U.S. 759 (1946) 15

Keller v. Petsock,

853 F.2d 1122 (3d Cir. 1988) 15

Lane v. Williams,

455 U.S. 624 (1982) 11

Lindh v. Murphy,

___ U.S. ___ (1997 W.L. 338568 (U.S.)) 7, 8, 10, 11

McFarland v. Scott,

512 U.S. 849 (1994) 9

Moore v. Dempsy,

261 U.S. 86 (1923) 14

Murray v. Carrier,

477 U.S. 478 (1986) 13, 16

Preiser V. Rodriguez,

411 U.S. 475 (1973) 11

Re: Yamashita,

327 U.S. 1, 66 S.Ct. 340, 90 Ed. 499 (1946) 15

Rose v. Lundy,

455 U.S. 509 (1982) 7, 9, 11, 12

Santana v. Fenton,

685 F.2d 71 (3d Cir. 1982) 6

Sawyer v. Whitley,

505 U.S. 333 (1992) 13, 16

Schlup v. Delo,

513 U.S. 298 (1995) 4, 5, 13, 14, 16

Stafford v. Briggs,

444 U.S. 527 (1980) 9

Taylor v. United States,

177 F.2d 194 (4th Cir. 1949) 15

Toulson v. Beyer,

987 F.2d 984 (3d Cir. 1993) 6

United States ex rel Glockey v. Myers,

450 F.2d 232 (1971), cert. denied 404 U.S. 1063 (1972) 14

United States v. Smith,

407 F.2d 33 (2d Cir. 1969) 15

Wade v. Mayo,

334 U.S. 672 (1948) 5

Wagenknecht v. Crouse,

344 F.2d 920 (lOth Cir. 1965) 15

Wainwright v. Sykes,

433 U.S. 72 (1977) 13, 16

STATUTES

28 U.S.C. 2244 1

28 U.S.C. 2244(b) 4, 6, 9, 10, 11, 16

28 U.S.C. 2254 1, 7, 15

28 U.S.C. 2254(b)(3) 7, 8, 9

28 U.S.C. 2254(c) 9

28 U.S.C. 2254(d) 9

28 U.S.C. 2254(d)(2) 9

28 U.S.C. 2254(e)(2) 12

42 Pa.C.S. 9541 6

INTEREST OF THE AMICI CURIAE

The Commonwealth of Pennsylvania(1) and the States of California, Delaware, Louisiana, Oklahoma, and South Carolina, each represented by its Attorney General, are vitally interested in the development, interpretation, and correct application of the law governing federal habeas corpus actions. We represent respondents from our respective States in federal habeas corpus actions brought by State prisoners in the federal courts.

The present case includes procedural rulings that, in the view of the amici, are antithetical to well-established case law and contrary to the statutory prerequisites of 28 U.S.C. 2244 and 2254. Application of these holdings to other habeas cases has the potential to seriously weaken, if not to dismantle entirely, the system for litigating the habeas actions of state prisoners and could seriously weaken, if not render meaningless, the notions of comity and federalism that inform habeas jurisprudence. The amici States have a compelling interest in the resolution of this appeal.

It is the belief of the amici states that the Court would find their views on the procedural issues helpful as those issues and questions may be addressed separately from the factual questions. Resolution of the procedural questions presented has a potentially far-reaching effect on habeas litigation of national significance.

SUMMARY OF ARGUMENT

The district court's use of its finding of "actual innocence" to help or allow Lambert to excuse her failure to exhaust her state remedies was error. "Actual innocence" is to be used only as a gate-keeper in situations of procedural bar or second or successive petitions. Congress, and the courts, have recognized only two exceptions to the exhaustion requirement -- an absence of an available remedy or circumstances extant which would render the process ineffective for the petitioner. Neither exception applies here. The district court erred in construing Pennsylvania's post conviction statute to bar petitioner's claims in the absence of any State court ruling to that effect. These amendments have put in place a new, highly differential standard for evaluating state court rulings. Comity and federalism concerns demand exhaustion here. They, instead were required by the district court to "give way to the imperative of correcting a fundamentally unjust incarceration." That standard is incorrect as it allows district courts to step

in whenever the constitution has been violated, regardless of whether the state courts have had an opportunity to correct the injustice.

The district court also erred in its use of the finding of "actual innocence" as a predicate to bar petitioner's retrial in State court on the underlying murder charges. "Actual innocence" does not relate to guilt or innocence. Its sole use is to allow district courts to hear and decide claims where there is a claimed abuse of the writ or a second or successive petition if the failure to do so would constitute a miscarriage of justice, or to excuse a procedural bar. Any attempt by a habeas court to decide guilt or innocence, or to use its finding of "actual innocence" in such a manner is beyond its power; it is a direct interference with a state court's conduct of state litigation which is precluded both by the historic nature of the writ and principles of federalism.

The district court further erred in concluding that this petitioner's "one bite at the federal apple as contemplated by the AEDPA." To the contrary, mixed petitions may be dismissed without prejudice for failure to exhaust. Such a petitioner may later file her petition in the district court as if it were the first such filing, if she fails to obtain the desired result in state court in exhausting here remedies.

ARGUMENT

Appellants have raised a number of issues before this Honorable Court each of which cries out for relief. It is not the purpose of this brief to reiterate those salient arguments, many of which are fact specific. Instead, the amici States will address three procedural errors which, if affirmed by this Court, would stand as misinterpretations of the proper scope of federal habeas corpus review and the requirements to obtain such review and relief which would be cited as persuasive authority in the federal courts of our respective jurisdictions. The errors to be addressed by amici are: 1) the district court's creation of a new exception to the statutory exhaustion requirement; 2) the district court's misuse of the habeas corpus procedural concept of "actual innocence" as a basis for relief; and 3) the district court's erroneous conclusion that dismissing a petition as "mixed" would result in a habeas petitioner's having to satisfy the second petition requirements of section 2244(b). 28 U.S.C. 2244(b). These errors will be addressed in order.

I. The District Court Wrongly Excused Lambert's Failure to Exhaust Her State Remedies.

The district court erred in its use of "actual innocence" to help or allow Lambert "to excuse her failure to present all of her evidence in the state system." Memorandum at 10. (A.6005) The district court relied on Schlup v. Delo, 513 U.S. 298 (1995). Schlup involved the death row prisoner who had filed a second petition for writ of habeas corpus which was dismissed for procedural bar

(second petition). Different from Schlup, this is Lambert's first petition. The district court took solace in this fact assuming that since Schlup addressed "actual innocence" in a second petition it was even more appropriate to do so in a first. Memorandum at 10 n.8 (A.6005).

The district court obviously misunderstood that it was only because Schlup involved a second petition that the concept of "actual innocence" or "miscarriage of justice" had to be addressed at all. The petitioner in Schlup had to make a showing of "actual innocence" in order for the substantive claims he raised in his second habeas corpus to be addressed on the merits and so that he would not suffer a dismissal of those claims. For Schlup, a showing of "actual innocence" was required as a gate-keeper to his new claims. Since this was Lambert's first petition, "actual innocence" was irrelevant. The habeas corpus gate was already open to her, provided she met all of the statutory prerequisites, including the requirement of exhaustion of state-court remedies.

Unlike the second petition situation presented in Schlup, Lambert's petition presents the question of exhaustion of state court remedies, a conclusion with which the district court agrees, at least as to some of Lambert's claims. Memorandum at 85. (A.6080) As this Court has most recently observed, the "'exhaustion requirement' is primarily grounded in the 'respect which federal courts have for the state judicial process and upon the administrative necessities of the federal judiciary.'" Christy v. Horn, ___ F.3d ___, No. 96-9004, slip op. At 10 (3d Cir. filed June 5, 1997) (quoting Wade v. Mayo, 334 U.S. 672 (1948)). "State courts are duty bound to give full effect to federal constitutional rights, and it cannot be assumed that they will be derelict in their duty. Only after state remedies have been exhausted without the federal claim having been vindicated may federal courts properly intervene. Indeed, any other rule would visit upon the federal courts an impossible burden, forcing them to supervise the countless state criminal proceedings in which deprivations of federal constitutional rights are alleged." Wade at 679-80.

The exhaustion requirement has been codified by Congress since 1948. See 28 U.S.C. 2254(b) (1997 Supp.). Only two exceptions to this statutory requirement were recognized by Congress: "that there is either an absence of available state corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." Id. Neither of these exceptions is availing here. Pennsylvania has a post-conviction procedure for litigation of federal constitutional claims, including alleged violations of due process. See Post Conviction Relief Act, 42 Pa. C.S. 9541 et seq.(2) Amici is aware of no circumstance which would render Pennsylvania's process ineffective to protect Lambert's rights. Indeed, the district court was confident that if given the opportunity the State courts of Pennsylvania would grant identical relief under the State Supreme Court's interpretation of the Pennsylvania Constitution's Double Jeopardy Clause. Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992).

Memorandum at 79 n.45 (A.6074 n.45) The district court's refusal to follow the exhaustion rule deprived the State courts of the ability to protect Lambert's rights.

In Rose v. Lundy, 455 U.S. 509 (1982), which held that "mixed petitions" must be dismissed for failure to exhaust, the Court stated that the "exhaustion requirement is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Id. at 518. The Court then added "[b]ecause 'it would be unseemly in our dual system of government for a federal court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation,' federal courts apply the doctrine of comity, which 'teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.'" Id. (quoting Darr v. Burford, 339 U.S. 200, 204 (1950)). The Court spoke of "[a] rigorously enforced exhaustion rule." Id.

In 1996, Congress strengthened the exhaustion requirement when it enacted the AEDPA Antiterrorism and Effective Death Penalty Act (AEDPA).(3) AEDPA provides that "[a] state shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." 28 U.S.C. 2254(b)(3) (1997 Supp.). Prior to the adoption of the AEDPA, case law allowed waiver by implication. If a state did not raise exhaustion as a bar to relief, court were required "to determine whether the interests of justice would be better served by addressing the merits of the habeas petition or by requiring additional state proceedings before doing so." Granberry v. Greer, 481 U.S. 129, 135 (1987). In Granberry, the Court vacated the court of appeals decision which had rejected the petitioner's waiver argument. The State had not raised the issue of exhaustion of remedies until petitioner appealed the district court's dismissal of his habeas petition on the merits. Now, however, waivers of exhaustion by implication, formerly permitted under Granberry, may no longer be found. 28 U.S.C. 2254(b)(3).

Moreover, assuming Grenberry is still the law, Lambert misreads Grenberry. Brief for Appellant 52 ("the exhaustion doctrine 'is not rigid and inflexible" and can be deviated from by the District Court in 'special circumstances.'"). If she were correct, a federal district court could ignore the exhaustion requirement, conduct a full evidentiary hearing (despite the severe restrictions Congress had placed on such hearings in section 2254) and then say, "well, I've conducted a hearing and now I determine that the requested relief should be granted." Such a reading turns the exhaustion requirement upside down.

In addition in 1996 Congress for the first time delineated the standard of review to be applied by the federal courts on an application for writ of habeas corpus filed on behalf of a state prisoner. Congress adopted a "new, highly deferential

standard for evaluating state court rulings." Lindh v. Murphy, ___ U.S. ___ (1997 W.L. 338568, *7 n.7 (U.S.)). In what may be a limitation on a federal court's jurisdiction, id. at *12 (Rehnquist, C.J., dissenting), Congress has said that the federal courts lack the authority to grant the writ 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 unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d). This provision is part of the same section which requires exhaustion of available State court remedies. 28 U.S.C. 2254(b) and (c). They must be read in pari materia. See Coit Independence Joint Venture v. Federal Savings and Loan Insurance Corporation, 489 U.S. 561, 573 (1989) (the sections of the act "do not exist in isolation, but are embedded within a complex statutory framework"); Stafford v. Briggs, 444 U.S. 527, 535 (1980) ("[i]t is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute;" quoting Brown v. Duchene, 19 How. 183, 194 (1857)). See also, McFarland v. Scott, 512 U.S. 849, 858 (1994) (section of two different statutes referring to the same proceeding "must be read in pari materia . . ."). It is against this backdrop that the exhaustion requirement of the statute must be viewed.

New Section 2254(d) assumes that the claim presented in the federal court on an application for writ of habeas corpus by a State prisoner has been "adjudicated on the merits in State court proceedings," i.e. "exhausted." The federal court must then ask if the adjudication in the State court "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 if the adjudication "resulted in a decision that was contrary to, or involved an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. 2254(d)(2). If a district court judge refuses to dismiss a mixed petition as required by Rose v. Lundy, supra, the federal judge denies the State court the opportunity to make a determination of the facts in light of the evidence presented (or otherwise) and to apply the established Federal law as determined by the Supreme Court. The federal court has no state court ruling against which to apply the "new, highly deferential standard for evaluating state court rulings." Lindh v. Murphy, supra, at *7 n.7.

In amending section 2254, Congress clearly intended such deference. In doing so it elevated the importance of exhaustion of State court remedies. Congress recognized the intrusion into the State's legitimate authority over criminal prosecutions and severely limited the circumstances under which the writ would be granted. To ignore exhaustion of State remedies and to deprive the State courts of the first opportunity to rule on the merits of federal constitutional claims is to ignore the will of Congress.

In a case brought before the 1996 amendments to section 2254, this Court noted that the "Supreme Court has instructed the federal courts are to 'exercise discretion in each [habeas] case to decide whether the administration of justice would be better served by insisting on exhaustion or by reaching the merits of the petition forthwith.'" Christy supra, slip op. at 11 (quoting Granberry v. Greer, supra at 131). As examples, the Court listed "state remedies are inadequate or fail to afford a full and fair adjudication of the federal contentions raised, or where exhaustion in state court would be futile." Id. (internal quotation marks deleted). In other words, as already provided for by Congress in 2254(b), this Court then stated that the mere risk that the state court will refuse to entertain and decide the federal constitutional claim "cannot amount to an 'unusual circumstance.'" Christy, slip op. at 11. In that capital murder case, this Court remanded with directions to dismiss the mixed petition. Id. slip op. at 13. Nothing less may occur under the current codification.

Moreover, exhaustion is not to be informed by any notion of punishing a state or compensating a prisoner. "Unlike damages actions, which are quintessentially backward looking, the writ of habeas corpus is prospective in nature. Habeas does not compensate for past wrongful incarceration, nor does it punish the state for imposing it. Instead, habeas is a challenge to unlawful custody, and when the writ issues it presents further illegal custody." Lindh v. Murphy, supra, at *11) (Rehnquist, C.J. dissenting opinion) (citing Lane v. Williams, 455 U.S. 624, 631 (1982); Preiser v. Rodriguez, 411 U.S. 475, 489 (1973).

The district court found "that this is an extraordinary case in which the principles of comity that inform the requirement of exhaustion, must give way to the imperative of correcting a fundamentally unjust incarceration." Memorandum at 86. (A.6081) The district court then relied upon comity for "not requiring total exhaustion." Id. The court ruled that "[j]ust as the principles of comity that inform the doctrine of procedural default must give way when there is a manifestly unjust incarceration, so too must those principles that undergird the exhaustion requirements give way." Memorandum at 88. (A.6083)

However, the "principles that undergrid the exhaustion requirement" were put there by the Congress. They are only to be informed by the doctrine of comity. Rose v. Lundy, supra. The district court has in the matter sub judice, turned comity on its head, elevating it to a position of an instrument for attacking the States rather than limiting its use to that of an analytical took in determining whether the requirements of 2254(b)(1)(A) or (B) have been met by a petitioner.

In Lindh v. Murphy, supra, the dissent maintained that "[t]here is a good arguement that 2254(d) is itself jurisdictional." Id. at *11 (dissenting opinion by Rehnquist, C.J.). The same argument can be made for 2254(b)'s exhaustion requirement. In any event, courts must not be allowed to use the doctrine of comity to eviscerate that requirement.(4)

The order of the district court should be reversed and the case should be remanded with directions that it be dismissed as a "mixed petition" under Rose v. Lundy, supra; Christy v. Horn, supra, or that Lambert be permitted to proceed only on any federal claims that have been exhausted.

II. A Finding Of "Actual Innocence" May Not Serve As A Basis For Prohibiting A Retrial Of Lambert In State Court.

The district court found that Lambert was "actually innocent" and that there was also prosecutorial misconduct. It concluded that "this is an extraordinary case." Memorandum at 74. (A.6069) Though the district court recited instances of constitutional violations, including prosecutorial and police misconduct which amounted, in the district court's view, to a deprivation of Lambert's due process rights barring retrial in the State courts, the essence of the district court's conclusion was predicated on the district court's finding that Lambert was "actually innocent" of the murder of Laurie Show. Memorandum at 78-79. (A.6073-6084)

The district court has misused its finding of Lambert's "actual innocence." A finding of "actual innocence" simply allows district courts to hear the merits of "claims if the failure to hear the claims would constitute a 'miscarriage of justice'" where there is a claimed abuse of the writ or a second or successive petition, Sawyer v. Whitley, 505 U.S. 333, 338 (1992), or to excuse a procedural bar. Wainwright v. Sykes, 433 U.S. 72 (1977). The Court in Sawyer denominated this rule as the "miscarriage of justice or 'actual innocence' exception." It also stated that it has a "narrow scope." Id. at 339-340. The Court had earlier "ruled that this concept of 'fundamental miscarriage of justice' applies to those cases in which the defendant was 'probably . . . .actually innocent.'" Id. (quoting Murray v. Carrier, 477 U.S. 478, 495, 496 (1986) (procedural default bar to federal habeas review)).

The Carrier "actual innocence" standard was applied in Schlup v. Delo, supra, a case involving a death sentenced petitioner who claimed actual innocence in his second federal habeas courpus petition. The Court stated that this standard requires the petitioner to "show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at ___, 115 S.Ct. at 867. The Court further ruled that in "assessing the adequacy of petitioner's showing. . .the district court is required to consider all other relevant evidence in its inquiry, incorporate the standard of reasonable, properly instructed jurors would do." Id. at ___, 115 S.Ct. at 868 (emphasis added). Thus, district courts do not have the power to determine guilt or innocence. That remains a function of the jury.

This conclusion is further strengthened by the Court's discussion in Schlup concerning reviewing claims of insufficient evidence, which focuses on whether a

rational juror could have convicted, as compared with the "actual innocence" standard which, by "use of the word "would' focuses the inquiry on the likely behavior of the [jury]." Id. at ___, 115 S.Ct. at 868. The difference is that an appellate court reviewing a verdict decides whether there is sufficient evidence while a habeas court, when faced with a second or subsequent petition or a procedurally barred claim, only decides whether a jury probably would have acquitted.

Consequently, any attempt by the habeas corpus court to decide guilt or innocence is without effect; it is beyond that court's power. A habeas court may only make a "probabilistic inquiry," id., when it decides whether a petitioner has met his "gateway standard," id. of "actual innocence" to avoid dismissal of the petition because of abuse of the writ or successiveness. The ultimate question of guilt of innocence, however, remains with the jury.

This Court has ruled that in a federal habeas corpus proceeding, the "inquiry whether the accused is guilty is a role appropriate only for the courts of the accusing state. The federal courts should confine their inquiry to the fairness of the state procedures that led to the conviction." United States ex rel Glockey v. Myers, 450 F.2d 232, 240 (1971), cert. denied 404 U.S. 1063 (1972). A habeas corpus review does not deal with "the petitioner's innocence or guilt. . . . " Herrera v. Collins, 506 U.S. 390, 400 (1993) (quoting Moore v. Dempsy, 261 U.S. 86-87-88 (1923)). "Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Id. at 400. "Thus, federal habeas courts act in their historic capacity to assure that the habeas petitioner is not being held in violation of his or her federal constitutional rights." Id. at 402. "[A] claim of 'actual innocence' is not itself a constitutional claim . . . ." Id. at 404.

Inquiring into guilt or innocence is a "direct interference with a state court's conduct of state litigation," which is precluded both by "the historic nature of the writ and principles of federalism." Barry v. Brower, 864 F.2d 294, 300 (3d Cir. 1988). In Barry, the district court granted a writ of habeas corpus and directed the state court to reinstate Barry's appeal. The State of New Jersey appealed. This Court stated that "[t]he writ of habeas corpus gives a court power to direct an official to produce the body of a person in custody in the court issuing the writ. The issuing court then has jurisdiction to free the person in custody from the restraints imposed upon his liberty. . .[but it] does not have the power to directly intervene in the process of the tribunal which has incorrectly subjected the petitioner to the custody of the respondent." Id. at 299-301. This Court then held that the district court erred in directing the state court to reinstate the appeal, ruling that "[a]n order in the nature of a decree nisi directing Barry's release from Brower's custody unless the state court acts to reinstate his appeal within thirty days. . .is all that is required." Id. at 301. See also, Keller v. Petsock, 853 F.2d 1122 (3d Cir. 1988) (federal court do not have authority under 28 U.S.C. 2254

to remand a habeas corpus petition to state court for an evidentiary hearing); Ex parte Quirin, 317 U.S. 1 (1942) (on application for a writ of habeas corpus, court is not concerned with any degree of guilt or innocence); Re: Yamashita, 327 U.S. 1, 66 S.Ct. 340, 90 Ed. 499 (1946) (same); Homma v. Patterson, 327 U.S. 759 (1946) (same); Wagenknecht v. Crouse, 344 F.2d 920 (10th Cir. 1965); United States v. Smith, 407 F.2d 33 (2d Cir. 1969); Taylor v. United States, 177 F.2d 194, 195 (4th Cir. 1949) (guilt or innocence is not subject to review by federal courts in a habeas corpus proceeding.)

The district court was without authority to grant relief to Lambert based upon her "actual innocence." Such a finding may only be used as permitted by the Supreme Court, to avoid dismissal because of an abuse of the writ or a successive petition or a procedural bar. Schlup v. Delo, supra; Sawyer v. Whitley, supra; Murray v. Carrier, supra; Wainwright v. Sykes, supra.

The grant of the writ should be reversed.

III. A Dismissal For Want Of Exhaustion Is Without Prejudice.

The district court, relying on Felker v. Turpin, ___ U.S. ___, 116 S.Ct. 2333 (1996), which was decided under 28 U.S.C. 2244(b) (1997 Supp.), ruled that "were we to dismiss this case as a mixed petition. . .petitioner would be deemed to have her one bite at the federal apple as contemplated in the AEDPA. This would mean that for her to return to federal court, she would. . need the approval of the Court of Appeal. . . a constitutionally intolerable result which fails to protect [petitioner's] rights." Memorandum at 85-86. (A.6080-6081)(5) This was error.

This Court has recently addressed this statutory construction issue, stating: "[w]hen a prior petition has been dismissed without prejudice for failure to exhaust state remedies," the petitioner is not "required to seek authorization from the court [of appeals] to file a petition for habeas corpus." Christy v. Horn, supra, slip op. at 13. Such a "petitioner may file his petition in the district court as if it were the first such filing." Id.

As Christy was properly decided, the district court's conclusion to the contrary cannot stand. The order of the district court should be reversed.

CONCLUSION

The conclusions of the district court in failing to require exhaustion of State court remedies and in granting relief based on its conclusion that a State prisoner was "actually innocent" are, quite simply, wrong. They ignore the will of Congress and the decisional law of this circuit and of the Supreme Court. They stand the limited, corrective function of habeas corpus on its head. Amici urge reversal.

Respectfully submitted,

D. MICHAEL FISHER

Attorney General

JEROME T. FOERSTER

Senior Deputy Attorney General

Appeals and Legal Services Section

BY: _____________________________________

* ROBERT A. GRACI

Assistant Executive Deputy Attorney General

Attorney I.D. No. 26722

Counsel for Amici States

Law and Appeals

16th Floor, Strawberry Square

Harrisburg, PA 17120

(717) 787-6348

* Counsel of Record

Date: July 21, 1997

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