Commonwealth v. Jones

¶1concurring.

¶2I join the Majority Opinion. I write separately only to note my skepticism concerning serial PCRA1 petitions containing supposed “new” claims arising from discovery authorized by federal district courts during the habeas corpus review process of judgments involving Pennsylvania state prisoners. With very rare exceptions, the point of federal habeas review is not to go on fishing expeditions to find new facts and claims not already presented in state court; federal courts are to review only the federal constitutional claims properly presented to state courts, while showing required deference to the reasonable decisions of the sovereign state courts. The U.S. Supreme Court made this elemental point clear this past term:

We now hold that review under [28 U.S.C.] § 2254(d)(1) [ (Habeas Corpus) ] is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that “resulted in” a decision that was contrary to, or “involved” an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time ie., the record before the state court.

This understanding of the text is compelled by “the broader context of the statute as a whole,” which demonstrates Congress’ intent to channel prisoners’ claims first to the state courts. Robinson v. Shell Oil Co., 519 U.S. 337, 341 [117 S.Ct. 843, 136 L.Ed.2d 808] (1997). “The federal habeas scheme leaves primary responsibility with the state courts.... ” [Woodford v. Visciotti, 537 U.S. 19, 27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) ]. Section 2254(b) requires that prisoners must ordinarily exhaust state remedies before filing for federal habeas relief. It would be contrary to that purpose to allow a petitioner to overcome an adverse state-court decision with new evidence introduced in a federal habeas court and reviewed by that court in the first instance effectively de novo.

Limiting [Section] 2254(d)(1) review to the state-court record is consistent with our precedents interpreting that statutory provision. Our cases emphasize that review under [Section] 2254(d)(1) focuses on what a state court knew and did. State-court decisions are measured against this Court’s precedents as of “the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 [123 S.Ct. 1166, 155 L.Ed.2d 144] (2003). To determine whether a particular decision is “contrary to” then-established law, a federal court must consider whether the decision “applies a rule that contradicts such law” and how the decision “confronts the set of facts” that were before the state court. Williams v. Taylor, 529 U.S. 362, 405, 406 [120 S.Ct. 1495, 146 L.Ed.2d 389] (2000) (Terry Williams). If the state-court decision “identifies the correct governing legal principle” in existence at the time, a federal court must assess whether the decision “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413 [120 S.Ct. 1495]. It would be strange to ask federal courts to analyze whether a state court’s adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court.

¶3*20Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 1398-99, 179 L.Ed.2d 557 (2011) (parallel citations omitted).

¶4The Commonwealth forwards no argument here concerning the objective legitimacy of the federal discovery order, just as it did not in another serial capital PCRA matter, in which a broad federal discovery order generated two burdensome serial PCRA appeals in this Court. See Commonwealth v. Abdul-Salaam, 42 A.3d 983 (Pa.2012); Commonwealth v. Abdul-Salaam, 606 Pa. 214, 996 A.2d 482 (2010). As a practical matter, prior to Cullen’s corrective teaching, state prosecutors in the Third Circuit probably had very little defense against overreaching federal district courts indulging new fact- and issue-finding forays — forays which, particularly where the Philadelphia Federal Community Defender’s Office (the “FCDO”) is involved, cause extreme delay in Pennsylvania capital cases. The FCDO’s exploitation of the federal court discovery order here has created seven years of additional delay in this capital case — all in pursuit of an untimely third PCRA petition.

¶5But, I expect that, eventually, in the wake of Cullen, litigants’ abuse of the discovery process will stem and the federal courts will cease disrespecting Pennsylvania judgments in this particular manner. Moreover, in an appropriate case, where the legitimacy of the federal discovery order giving rise to the new serial PCRA claim is challenged, I would be receptive to the argument that evidence “discovered” as a result of an improper federal habeas discovery order does not trigger the 60-day exception to the PCRA’s jurisdictional time-bar. See 42 Pa.C.S. § 9545(b).