Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-2004

Slutzker v. Johnson
Precedential or Non-Precedential: Precedential

Docket No. 03-4046




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Slutzker v. Johnson" (2004). 2004 Decisions. Paper 3.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/3


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                 Nos. 03-4046 & 03-4219


                STEVEN G. SLUTZKER

                 Appellant in No. 03-4219

                            v.

 PHILIP JOHNSON; *GERALD J. PAPPERT; STEPHEN A.
  ZAPPALA, JR., District Attorney, Allegheny County, PA,

                Appellants in No. 03-4046

         *Amended per Clerk’s Order of 08/17/04


      On Appeal from the United States District Court
         for the Western District of Pennsylvania
                  (D.C. No. 99-cv-1952)
       District Judge: Honorable Gary L. Lancaster




               Argued October 4, 2004
 Before: SLOVITER, BECKER, and STAPLETON, Circuit
                      Judges.

                (Filed December 29, 2004)

DOUGLAS SUGHRUE (ARGUED)
Allen & Sughrue
428 Forbes Avenue
Suite 1600

                            1
Pittsburgh, PA 15219
Attorney for Steven G. Slutzker

RONALD M. WABBY, JR. (ARGUED)
Office of District Attorney
401 Allegheny County Courthouse
Pittsburgh, PA 15219
Attorney for Philip Johnson et al.




                     OPINION OF THE COURT




BECKER, Circuit Judge.

        This is an appeal by the Commonwealth of Pennsylvania
from an order of the District Court granting habeas corpus relief to
Steven G. Slutzker from a twelve-year-old conviction in a nearly
thirty-year-old murder case. When John Mudd Sr. was murdered in
his home in late 1975, suspicion soon focused on Slutzker, who
had been having an affair with Mudd’s wife, and who had
attempted to hire a hit man to kill him. At the time, prosecutors
could not assemble enough evidence to incriminate Slutzker, and
no one was indicted for the crime. Fifteen years later, however,
Mudd’s son, John Mudd Jr., approached police and claimed to have
recovered previously repressed memories of his father’s
murder—including an image of Slutzker fleeing the scene of the
crime. Slutzker was arrested, prosecuted, and convicted of the
murder, and was sentenced to life in prison.
        Slutzker filed a habeas corpus petition alleging numerous
constitutional errors at his trial. The District Court granted habeas
relief on two of these grounds, a Brady violation and ineffective
assistance of counsel. The court granted a certificate of
appealability on these two grounds, and also on a third—the trial
court’s refusal to compel Mudd’s wife, Arlene Mudd Stewart, to




                                  2
testify.1 Slutzker cross-appeals from the denial of relief on this
issue.
        For the reasons set forth below, we will hold that the District
Court was correct in finding a Brady violation, and that, although
this claim was procedurally defaulted, Slutzker has demonstrated
cause and prejudice sufficient to excuse the default. We will
therefore affirm on that claim. We will also affirm the District
Court’s denial of relief for the refusal to compel Arlene Mudd to
testify. However, because we determine that the writ of habeas
corpus should be granted due to the Brady violation, we will not
reach the question whether Slutzker’s trial attorney rendered
ineffective assistance. Although the District Court did not specify
the exact nature of the relief granted, we think it clear that the court
meant to order Slutzker released unless the Commonwealth elects
to retry him, and we will therefore modify the District Court’s
order to so provide.

                   I. Facts and Procedural History

                        A. Background Facts

        The power went out at John Mudd Sr.’s house in
Wilkinsburg, Pennsylvania, on December 28, 1975, at around
11 p.m. Mudd went to check the fuse, and was shot six times with
a .32 caliber handgun by an intruder who was secreted in the
basement. Mudd’s wife Arlene, and their five-year-old son John Jr.,
were upstairs at the time of the murder.
        Mudd’s neighbor Steven Slutzker soon became the prime
suspect in the murder. He had been having an affair with Arlene
Mudd; she had briefly moved out of her house and lived with him
in the summer of 1975. Significant evidence showed that Slutzker
had been planning to kill Mudd. In early December, Slutzker had
purchased a .32 caliber handgun and asked a co-worker to show


       1
         We note that, although the District Court issued a certificate of
appealability as to the two grounds on which it granted the habeas
petition, such a certificate was not required: the Commonwealth may
appeal a grant of habeas corpus as of right. Fed. R. App. P. 22(b)(3); see
also United States ex rel. Tillery v. Cavell, 

, 15 (3d Cir.
1961).

                                    3
him how to load it. On December 19, he had telephoned a friend,
Michael Pezzano, and asked if Pezzano knew any hit men, because
he wanted to kill Mudd to be with Arlene. A few days later,
Slutzker offered to pay Pezzano $500 and provide him with the
handgun he had purchased if Pezzano would kill Mudd. Pezzano
said he would consider it, then reported this conversation to the
state police. The police took no immediate action. Slutzker claims
that Arlene had insisted that he kill Mudd because he had abused
her; he also claims that he ended the conspiracy, and his
relationship with Arlene, on December 26, 1975.
        The police investigated the murder and quickly tracked
down Slutzker, who was staying (along with his six-year-old
daughter Amy) at the house of friends, Patrick and Janet O’Dea, in
McKeesport. The O’Deas told the police that Slutzker had stayed
at their house on the night of the murder, that he had been drinking
heavily, and that he had passed out on their bed at around 8 p.m.
The O’Deas claim next to have seen Slutzker at around 1 a.m.,
when they woke him to move him to the living-room couch so that
they could go to sleep. 

While they were not completely
consistent in all their statements, they generally represented that
Slutzker could not possibly have awakened, sobered up, taken their
car, and driven to Wilkinsburg and back to commit the murder
within the time in which they left him alone. Slutzker’s car had not
been moved from the O’Deas’ house on the night of the murder.
        Despite this alibi, the police arrested Slutzker for criminal
homicide and solicitation to commit murder. Arlene Mudd was
charged with solicitation. Janet O’Dea was charged with
conspiracy for allegedly disposing of the murder weapon, which
was never found. However, all homicide charges were dismissed
at the coroner’s inquest, at which Arlene Mudd testified that
Slutzker was not present when her husband was killed. Charges
against Arlene M udd were also dismissed. Janet O’Dea was offered
a deal if she would testify against Slutzker; she refused, and was
tried for conspiracy and acquitted.
        Slutzker was convicted of solicitation on Pezzano’s
testimony. See Commonwealth v. Slutzker, 

(Pa.
Super. Ct. 1978). He served about a year in prison. He was
released, moved away, remarried, and lived quietly for nearly
fifteen years. Then, in November 1990, John Mudd Jr., who was
five years old at the time of the murder, told police that he

                                 4
remembered who killed his father. He said that he had repressed
memories of seeing his father’s body at the foot of the basement
stairs, and of seeing Slutzker fleeing from his house. Fifteen years
later, he claims, he recovered those vivid memories while fighting
with an acquaintance. He talked to the police in November 1990,
and gave a comprehensive statement to a psychologist some four
months later. On the basis of these statements, the Commonwealth
brought murder charges against Slutzker and Arlene Mudd. The
charges against Arlene Mudd were later dropped.
        The eyewitnesses who testified against Slutzker at trial
included John M udd Jr.; Cynthia DeMann, a neighbor who testified
that she saw Slutzker talking with Arlene Mudd shortly after the
killing; Timothy Brendlinger, a policeman who also testified that
he saw Slutzker talking with Arlene after the killing; and Amy
Slutzker, Slutzker’s estranged daughter, who testified that she and
her father were at home on the night of the murder, and that she
saw him take a gun and leave the house minutes before the police
arrived. Amy Slutzker was only six years old at the time of the
murder. She did not claim recovery of repressed memory, only that
she was afraid of her father and had previously declined to come
forward with her story.
        Slutzker’s trial attorney, Charles Scarlata, never called the
O’Deas to testify in support of Slutzker’s alibi. 2 He did attempt to
call Arlene Mudd, but she claimed the Fifth Amendment privilege
against self-incrimination, and the trial court refused to compel her
to testify. In January 1992, the jury convicted Slutzker of murder.
He was sentenced to life in prison.

                  B. Post-Conviction Proceedings

       Slutzker appealed his conviction, raising a number of issues,
including the competency of the recovered-memory testimony and
the fact that the trial court did not compel Arlene Mudd to testify.
The Pennsylvania Superior Court affirmed the conviction in
October 1993; the Pennsylvania Supreme Court denied a petition


       2
        Scarlata died in March 2000. Slutzker was represented by Chris
Rand Eyster during his PCRA petition. He initially filed his federal
habeas petition pro se; his current attorney, Douglas Sughrue, entered an
appearance on May 8, 2002.

                                   5
for allocatur in April 1994.
        In January 1996, Slutzker filed a petition under the
Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat.
§§ 9541-9545 (PCRA). His PCRA petition raised sixteen issues
relating to ineffective assistance of trial counsel. The PCRA court
conducted evidentiary hearings, during which it took testimony
from Scarlata. The court dismissed the petition, and the Superior
Court affirmed; the Pennsylvania Supreme Court denied review in
November 1999.
        On December 1, 1999, Slutzker filed a pro se Petition for
Writ of Habeas Corpus in the District Court for the Western
District of Pennsylvania. The Petition was assigned to M agistrate
Judge Kenneth J. Benson. In 2001, Slutzker, still representing
himself, sent a subpoena to the W ilkinsburg police department
(which had jurisdiction over the murder investigation) requesting
any information relevant to his case. On September 11, 2001, the
police sent him twenty-one police reports which apparently had not
previously been disclosed to him or his lawyers. Upon receiving
these materials, Slutzker wrote to Magistrate Judge Benson
explaining the new evidence and the impact it might have had at
trial. Slutzker never received a response to this letter.
        On September 12, 2002, the case was reassigned to
Magistrate Judge Susan Paradise Baxter. On January 10, 2003,
Slutzker, now represented by counsel, filed an Amended Petition
for Habeas Corpus asserting a number of claims. Magistrate Judge
Baxter rejected most of these claims in her final Report and
Recommendation. However, she recommended granting the
petition, and a certificate of appealability, on two grounds: a claim
founded on Brady v. Maryland, 

(1963), on account of
the previously undisclosed police reports, and a claim of ineffective
assistance of counsel, based on Scarlata’s failure to interview the
O’Deas or call them as alibi witnesses. On a third issue, the failure
to compel Arlene M udd to testify at trial, Magistrate Judge Baxter
recommended denying relief, but granting a certificate of
appealability. She recommended denying a certificate of
appealability on all other grounds. On September 25, 2003, the
District Court adopted the Magistrate Judge’s report and order. The
Commonwealth then appealed, and Slutzker cross-appealed on the
issue of Arlene Mudd’s refusal to testify.
        Our review of the District Court’s legal conclusions is

                                 6
plenary. Stevens v. Delaware Corr. Ctr., 

, 368 (3d Cir.
2002). In this case, our review of the District Court’s factual
findings is also plenary, because that Court relied solely on the
state court record, and did not conduct an evidentiary hearing.
Duncan v. Morgan, 

, 196 (3d Cir. 2001).

                        II. The Brady Claim

       The Commonwealth argues that the District Court erred in
granting habeas relief on Slutzker’s Brady claim. It submits that the
claim was procedurally defaulted; that the police reports had in fact
been disclosed to the defense before trial; and that, even if they had
not been disclosed, the Brady violation did not prejudice the
outcome of Slutzker’s trial. We shall address each of these
contentions below. First, however, to clarify the later discussion,
we describe the disputed police reports in somewhat greater detail.

                       A. The Police Reports

        The Brady evidence consists of twenty-one police reports
detailing interviews with Mudd’s and Slutzker’s friends and
neighbors conducted by the Wilkinsburg Police from December
1975 through February 1976. The most important of the reports
describes a January 15, 1976, interview with Cynthia DeMann,
Mudd’s next-door neighbor. In two previous interviews with the
police, on December 29 and 30, 1975, Mrs. DeMann had told
police that she saw Arlene Mudd talking to a man in front of her
house shortly after the murder, but that she was unable to identify
him. The reports of these interviews were concededly turned over
to the defense. In the January 15 interview, however, Mrs. DeMann
definitively stated that the man she saw with Mrs. Mudd was not
Slutzker. The police report says:
        Mrs. DeMann stated she thinks if it was Steve
        [Slutzker] standing in front of the house, she would
        have recognized him. She stated Steve is a very tall
        man, but the man that was standing out front was not
        very tall. Mrs. DeMann stated she thinks Steve is
        about 6 foot. Whoever it was beside her [Arlene




                                  7
      Mudd] was only about a forehead taller. 3
These statements do not appear in the other interviews with Mrs.
DeMann. The remaining police reports are of considerably lesser
importance.4

            B. Procedural Barriers to Slutzker’s Claim

        Before reaching the merits of the alleged Brady violation,
we consider the Commonwealth’s contention that it is procedurally
defaulted. This contention depends on Pennsylvania’s PCRA time
bar. Slutzker claims to have received the twenty-one previously
undisclosed police reports on September 11, 2001. Under the
Pennsylvania PCRA, a prisoner may file a challenge to his
conviction for up to one year after the judgment becomes final,
unless the facts upon which the challenge is predicated were
unknown at that time. 42 Pa. Cons. Stat. § 9545(b)(1). If the
predicate facts are discovered after this one-year period, the
prisoner must file his petition within sixty days of discovery. 

        Slutzker’s conviction became final on May 17, 1994, when
the Supreme Court of Pennsylvania denied his motion for
reconsideration of its denial of direct review. See 42 Pa. Cons. Stat.
§ 9545(b)(3) (judgment becomes final on conclusion of direct
review). He filed a PCRA petition in January 1996, which perforce
did not mention the then-undiscovered Brady documents. He was
denied PCRA relief in September 1997, and fully exhausted his
PCRA appeals, which concluded in November 1999. He filed a pro
se petition for habeas corpus in federal court in December 1999.
        When Slutzker discovered the police reports, his pro se
habeas petition was pending in the federal courts. He did not move
to stay or dismiss this petition so as to file a second PCRA petition
based on the newly discovered facts. The Commonwealth asserts
that Slutzker’s failure to file a second PCRA petition led to a
procedural default on the Brady issue. Because the Pennsylvania


       3
         The record does not disclose how tall Mrs. Mudd is, nor did the
parties have any comment on the issue at oral argument.
       4
         The Magistrate Judge summarized the most important of these
reports in her Report and Recommendation.

                                   8
courts never had the opportunity to address this claim, the
Commonwealth argues that it is now foreclosed.

                            1. Exhaustion

       The starting point for our analysis is the habeas statute,
which requires that prisoners exhaust their claims in state court
before seeking relief from the federal courts. 28 U.S.C.
§ 2254(b)(1)(A); see also Landano v. Rafferty, 

, 668
(3d Cir. 1990). There is no dispute that Slutzker has not exhausted
his Brady claim. He discovered it in September of 2001, well after
his PCRA appeals had terminated, and while his original pro se
habeas petition was pending. He never returned to state court with
a second PCRA petition, and thus denied the Pennsylvania courts
the opportunity to rule on this claim. Under the doctrine of Fay v.
Noia, 

(1963), and Rose v. Lundy, 

, 522
(1982), federal courts must dismiss without prejudice habeas
petitions that contain any unexhausted claims.5
       The exhaustion requirement does not apply, however, in
cases where the state courts would not consider the unexhausted
claims because they are procedurally barred. Doctor v. Walters, 

, 681 (3d Cir. 1996); cf. Toulson v. Beyer, 

,
987 (3d Cir. 1993) (“A petition containing unexhausted but
procedurally barred claims in addition to exhausted claims, is not
a mixed petition requiring dismissal under Rose.”). This conclusion
stems from the doctrine that exhaustion is not required where
pursuit of state remedies would be futile. 

;
Szuchon v. Lehman, 

, 323-24 n.14 (3d Cir. 2001); cf.
28 U.S.C. § 2254(b)(1)(B) (excusing exhaustion where “there is an
absence of available State corrective process”). Where exhaustion
is excused because of this form of futility, the habeas doctrine of
procedural default may apply to bar relief. See infra Part II.B.2.


       5
         In Crews v. Horn, 

, 151 (3d Cir. 2004), this Court,
citing Zarvela v. Artuz, 

, 379-80 (2d Cir. 2001), found that
the one-year time limit on habeas petitions introduced by the
Antiterrorism and Effective Death Penalty Act had altered the rule of
Rose v. Lundy to allow a district court to stay, rather than dismiss, a
mixed habeas petition. We shall have more to say about this “stay and
abey” rule in Part II.B.3.b, infra.

                                   9
        The mere existence of a state procedural rule that would
appear to bar relief is not, however, sufficient to avoid the
exhaustion requirement. The policy behind the exhaustion
requirement is to give state courts a full opportunity to address the
petitioner’s claims. 

. Given this, if there is
any likelihood that the state courts would consider the merits of a
petitioner’s unexhausted claim, the federal courts should dismiss
his petition and allow him to seek relief in state courts. 

(Scirica, J., concurring). We reach the merits only if state law
“clearly foreclose[s] state court review of the unexhausted claims.”

(emphasis added).
        Here, however, it seems certain that the Pennsylvania courts
would not entertain Slutzker’s Brady claim after the 60-day PCRA
limit. The time limits under 42 Pa. Cons. Stat. § 9545(b) are
mandatory and jurisdictional in nature, Commonwealth v. Murray,

, 203 (Pa. 2000), and “the PCRA confers no authority
upon [any Pennsylvania] Court to fashion ad hoc equitable
exceptions to the PCRA time-bar in addition to those exceptions
expressly delineated in the Act,” Commonwealth v. Robinson, 

, 1161 (Pa. 2003); see also Commonwealth v. Eller, 

, 845 (Pa. 2002). No argument that Slutzker had good
reason for failing to file within the 60-day period is relevant,
because
        the period for filing a PCRA petition is not subject to
        the doctrine of equitable tolling; instead, the time for
        filing a a PCRA petition can be extended only to the
        extent that the PCRA permits it to be extended, i.e.,
        by operation of one of the statutorily enumerated
        exceptions to the PCRA time-bar.
Commonwealth v. Cruz, 

, 292 (Pa. 2004) (internal
quotation marks omitted); see also Commonwealth v. Fahy, 

, 222 (Pa. 1999). The statutory exceptions are contained
in § 9545(b)(1), and a petition invoking such an exception must be
filed within 60 days of the time that the claim could have been
presented, § 9545(b)(2). Here, it was not.
        Since Slutzker gets no help from the statutory exceptions,
and since the Pennsylvania courts will not consider late-filed
petitions, there is no doubt that Slutzker cannot now bring his
Brady claim in the Pennsylvania courts. Thus his failure to exhaust
that claim is excused under 28 U.S.C. § 2254(b)(1)(B).

                                 10
               2. The Procedural Default Framework

        This excuse from the exhaustion requirement does Slutzker
no good, however, unless he can avoid the concomitant doctrine of
procedural default. See 

. This 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.” Coleman v. Thompson,

, 729-30 (1991). 6 The raison d’être for the doctrine
lies in the fact that a state judgment based on procedural default
rests on independent and adequate state grounds. 

see
also Wainwright v. Sykes, 

, 81-82 (1977).
        In this case, there is no doubt that Slutzker has defaulted on
his Brady claims under Pennsylvania law. 

Part II.B.1.
Therefore, this Court may reach the merits of Slutzker’s Brady
claims only “if the petitioner makes the standard showing of ‘cause
and prejudice’ or establishes a fundamental miscarriage of justice.”
Lines v. Larkins, 

, 166 (3d Cir. 2000); see also

.7 Slutzker argues that he has
established cause and prejudice for his default.

                        3. Cause and Prejudice



       6
         While Coleman concerned a case where the state court actually
had declined to hear the petitioner’s claims, a case in which the state
court certainly would have declined to hear those claims raises identical
procedural default issues. See 

n.14.
       7
         Slutzker does not argue that there was a “fundamental
miscarriage of justice,” which in the ordinary case requires a petitioner
to establish “actual innocence” by proving “that it is more likely than not
that no reasonable juror would have convicted him in the light of the
new evidence.” Schlup v. Delo, 

, 327 (1995). Given the
quantity of evidence that the Commonwealth has produced to
incriminate Slutzker, we have significant doubts that he could meet this
stringent standard. At all events, we are required to address other
possible grounds for excusing procedural default before examining
“actual innocence.” See Dretke v. Haley, — U.S. —, 

,
1852 (2004).

                                    11
       The first step in establishing cause and prejudice is to
establish cause, i.e., “some objective factor external to the defense
[that] impeded counsel’s efforts to comply with the State’s
procedural rule.” Murray v. Carrier, 

, 488 (1986). We
find that the unusual procedural posture of Slutzker’s petition
constitutes such an objective, external factor.

                    a. The Statute of Limitations

        When he received the previously undisclosed police reports,
Slutzker had exhausted his PCRA appeals and had a pro se habeas
corpus petition pending before the District Court. If he had
amended his habeas petition to include the Brady claim, and
simultaneously brought a second PCRA petition on this issue, his
entire habeas petition would have been dismissed for failure to
exhaust. Rose v. 

. While this dismissal
would have been without prejudice, and would have allowed re-
filing, Slutzker’s eventual re-filing would have been time-barred by
the provisions of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA). AEDPA provides a one-year limitations period
for habeas corpus review of state convictions. 28 U.S.C.
§ 2244(d)(1). This period runs from the date that the conviction
becomes final, § 2244(d)(1)(A), or the date on which the factual
predicate of the claim could have been discovered,
§ 2244(d)(1)(D), and is tolled during the pendency of a properly
filed application for state collateral review, § 2244(d)(2). 8
        The statute of limitations on Slutzker’s Brady claim began


       8
         Section 2244(d)(1) also identifies two other possible start dates
for the statute of limitations—the date on which any state-created
impediment to habeas filing ends, § 2244(d)(1)(B), or the date on which
a retroactively applicable constitutional right is first recognized by the
Supreme Court, § 2244(d)(1)(C)—which are not relevant here.
        Because Slutzker’s conviction became final in 1994, prior to the
April 24, 1996, effective date of AEDPA, he had until April 23, 1997 to
file a habeas petition. Burns v. Morton, 

, 111 (3d Cir.
1998). This period was tolled by his first PCRA petition from January
1996 through November 1999, and Slutzker filed his federal petition in
December 1999. Thus, when he filed his habeas petition, Slutzker had
essentially a full year of the statute of limitations remaining.

                                   12
running on September 11, 2001, when he received the police
reports.9 The statute on Slutzker’s other claims, however, began
running on the April 24, 1996, effective date of AEDPA, though it
was tolled by his first PCRA petition from January 1996 through
November 1999. 

note 8; see also Fielder v. Varner, 

, 118 (3d Cir. 2004) (finding that the AEDPA statute of
limitations should be applied on a claim-by-claim basis). The
statute was not, however, tolled during the pendency of Slutzker’s
habeas petition from December 1999 through his discovery of the
Brady documents in September 2001. This is the teaching of
Duncan v. Walker, 

, 172-73 (2001), which held that
a previous habeas corpus petition that has been dismissed without
prejudice for failure to exhaust does not toll the AEDPA statute of
limitations for a later habeas petition. At the time he discovered the
Brady documents, Slutzker’s habeas petition had been pending for
nearly two years; had it been dismissed, even without prejudice, his
claims would have been forever barred by § 2244(d).

                  b. The Stay-and-Abey Possibility

        The Commonwealth argues, citing Merritt v. Blaine, 

(3d Cir. 2003), that Slutzker could have amended his
federal petition to assert the Brady claim, and then “requested that
the current Petition for Writ of Habeas Corpus be stayed until the
completion of state review of his claim.” We do not find this
argument compelling. Slutzker certainly could have requested such
a stay, but in the fall of 2001 there was significant doubt that he
would have received one, or that if he did it would be upheld on
appeal. Merritt itself was decided some nineteen months after


        9
         Of course, the statute of limitations starts running from “the date
on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence,”
§ 2244(d)(1)(D) (emphasis added), not the date on which the factual
predicate actually was discovered. See Schlueter v. Varner, 

,
74 (3d Cir. 2004). On the record before us, we cannot be sure whether
Slutzker “could have” discovered the Brady materials prior to September
11, 2001. But we note that, in general, Slutzker has been a paragon of
due diligence, and the Commonwealth has not disputed that the Brady
claim is timely.

                                    13
Slutzker received the police reports, and did not squarely hold that
such a “stay and abey” procedure was appropriate. Instead, it
merely noted in a footnote that
        when petitioners have filed habeas actions in federal
        courts before they have fully exhausted their state
        remedies, many federal courts have suggested that
        the federal actions should be stayed to give the
        petitioners an opportunity to file their state action
        because an outright dismissal, even without
        prejudice, could jeopardize the timeliness of a
        collateral 

n.10. Not until Crews v. Horn, 

, 151-
52 (3d Cir. 2004), did we specifically hold that “[s]taying a habeas
petition pending exhaustion of state remedies is a permissible and
effective way to avoid barring from federal court a petitioner who
timely files a mixed petition.”
        In Crews, we relied on Justice Stevens’s concurrence in
Duncan v. 

, which stated that “in our
post-AEDPA world there is no reason why a district court should
not retain jurisdiction over a meritorious claim and stay further
proceedings pending the complete exhaustion of state remedies.”
Walker was decided in June 2001; four Justices agreed that mixed
habeas petitions should be stayed rather than dismissed, while the
other five did not discuss the issue. Most of the Courts of Appeals
have held, before and after Duncan, that District Courts could stay
mixed petitions when dismissal might render them untimely. See,
e.g., Neverson v. Bissonnette, 

, 126 n.3 (1st Cir.
2001); Zarvela v. Artuz, 

, 380-82 (2d Cir. 2001);
Mackall v. Angelone, 

, 445 (4th Cir. 1997); Brewer v.
Johnson, 

, 493 (5th Cir. 1998); Palmer v. Carlton,

, 781 (6th Cir. 2002); Freeman v. Page, 

,
577 (7th Cir. 2000); Calderon v. United States Dist. Court for the
N. Dist. of Calif., 

(9th Cir. 1998).
        Many of these cases from other Circuits were decided before
Slutzker received his Brady materials, so a conscientious attorney
in Slutzker’s position might have considered the “stay-and-abey”
procedure as a possibility. (Slutzker was, of course, proceeding pro
se at the time.) But before Crews, or at least Merritt, there was no
Supreme Court or Third Circuit precedent approving this



                                14
procedure.10 Moreover, one Court of Appeals, the Eighth Circuit,
had held that a District Court lacked the power to stay habeas cases
pending state-court resolution of unexhausted claims. Carmichael
v. White, 

(8th Cir. 1998).11 Even a prompt request
for a stay would thus have carried the risk that the stay might be
overturned on appeal, if we had chosen to follow the reasoning of
Carmichael. If a stay were granted and then overturned, Slutzker’s
claims would be dismissed under Rose v. Lundy as not fully
exhausted, his limitations period would run, and all of his non-
Brady habeas claims would become untimely.

                        c. Parallel Proceedings

        As just explained, Slutzker would have been at grave risk if
he had amended his habeas petition to include the Brady claim, and
either dismissed or had that petition stayed to exhaust the claim in



       10
          Nor had any District Court in this Circuit allowed the
procedure. In Beasley v. Fulcomer, Civ. A. No. 90-4711, 

(E.D. Pa. Apr. 22, 1991), a somewhat analogous pre-AEDPA
case, the Eastern District of Pennsylvania held a mixed habeas petition
in abeyance, rather than dismissing it, because the petitioner was under
a death sentence and this procedure would allow the District Court to
continue its stay of execution until the state claims were resolved. But
Beasley was not controlling precedent, and would not apply to Slutzker
in any case because he did not face the death penalty. Furthermore, this
Court’s decision in Christy v. Horn, 

, 206-07 (3d Cir.
1997), cast some doubt on the vitality of Beasley, dismissing rather than
staying a mixed petition because we found that there was no danger that
the petitioner would be executed during the pendency of his state court
proceedings. We have not discovered any other pre-Merritt District
Court decisions in this Circuit approving anything resembling the “stay
and abey” procedure.
       11
         The Eighth Circuit’s refusal to stay mixed habeas
petitions—and, thus, the validity of the other Circuits’ willingness to do
so—is currently under review by the Supreme Court. See Rhines v.
Weber, 

(8th Cir. 2003), cert. granted, — U.S. —, 124 S.
Ct. 2905 (2004); cf. Pliler v. Ford, — U.S. —, 

, 2446
(2004) (declining to “address[] the propriety of [the] stay-and-abeyance
procedure”).

                                   15
state courts. A third, and just as unappealing, option might have
been for Slutzker to proceed separately with his unamended habeas
petition, while separately bringing a second PCRA petition on the
habeas claims. We have allowed state prisoners to seek federal
habeas corpus relief while they also pursue state remedies on
claims that are unrelated to their habeas claims. See Pringle v.
Court of Common Pleas, 

, 300 (3d Cir. 1984)
(reversing dismissal of a habeas petition where petitioner was
pursuing a parallel state appeal of a state-law sentencing issue); cf.
Tillett v. Freeman, 

(3d Cir. 1989) (reversing
dismissal of a habeas petition that included an unexhausted claim
cognizable only under state law). But these cases involved
petitioners with fully exhausted federal claims, who brought their
habeas petitions in parallel with state proceedings based solely on
state law. Thus, we found that “none of the purposes attributed by
the Rose v. Lundy opinion as support for its exhaustion rule have
any application,” 

, and held only that the
exhaustion requirement of Fay and Rose “is not controlling when
the unexhausted claim in question is one of state law,” 

. As the unexhausted claim here is one of federal law,
Pringle and Tillett provide only attenuated support for the view that
Slutzker could have pursued parallel federal habeas corpus and
state PCRA petitions.
        Even if this option was available, however, it would have
presented dangers similar to those involved in staying or dismissing
his entire petition. If Slutzker had been able to exhaust his Brady
claim in state court while still litigating his remaining habeas
claims in federal court, and if he had been denied PCRA relief on
the Brady claim, any attempt to seek federal habeas review of that
claim would be a “second or successive habeas corpus application”
under 28 U.S.C. § 2244(b). See Rose v. 

.
For Slutzker to bring such a second habeas petition, he would have
to petition this Court for leave to file the second petition,
§ 2244(b)(3), and demonstrate that “the facts underlying the claim,
if proven, would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder
would have found [him] guilty of the underlying offense,”
§ 2244(b)(2)(B)(ii). We doubt that Slutzker could have met such a
stringent standard. 

note 7.
        Thus, even if Slutzker had been able to pursue his exhausted

                                 16
habeas claims in federal court while simultaneously exhausting his
Brady claim in state court, doing so would nonetheless have
essentially denied him the chance to receive any federal review of
that claim, because it would be subject to the heightened barrier of
§ 2244(b).

                           d. Conclusion

        When Slutzker received the Brady materials, then, he had
four choices, none of them attractive. He could file a second PCRA
petition on the Brady issue, see his pending habeas petition
dismissed under Rose v. Lundy, and give up on all of his other
habeas claims, which would immediately become time-barred. He
could request a stay in his habeas proceeding, despite the lack of
any Third Circuit precedent allowing such a stay, and risk
untimeliness on all of his claims if such a stay was not granted and
upheld on appeal. He could possibly attempt to proceed in parallel,
in federal court on his exhausted habeas claims and in state court
on his new Brady claim—an untried course that would eliminate
any real possibility of federal review of the Brady issue. Or he
could continue in federal court and procedurally default under the
PCRA’s time limits. Slutzker chose the final option.
        We find that this difficult choice among four options, each
of which would endanger Slutzker’s ability to obtain habeas review
of all of his claims, constituted ample external cause for Slutzker’s
default. While the Supreme Court has never “attempt[ed] an
exhaustive catalog of such objective impediments to compliance,”
Murray v. 

, it has suggested that there are
at least two common categories: “a showing that the factual or legal
basis for a claim was not reasonably available to counsel, or that
some interference by officials made compliance impractical,” 

internal quotation marks omitted). The situation
facing Slutzker fits within both of these categories.
        On the one hand, it is the Commonwealth’s own failure to
disclose the Brady material that led to Slutzker’s dilemma. By
waiting to disclose this material until after Slutzker had filed his
federal habeas petition and until that proceeding had been pending
for two years, the Commonwealth put him in a position where he
could not comply with the applicable state limitation and federal
exhaustion law without losing, or at least seriously jeopardizing,

                                 17
his right to federal review of all of his constitutional claims.
        On the other hand, Slutzker’s difficulties were also due
directly to the unsettled state of our case law: thus, the legal basis
for his claim was in a very real sense unavailable. Of course, there
is no argument that Slutzker’s Brady claim was not legally
available in September of 2001: Brady itself had been the law of
the land for nearly forty years, and the newly discovered police
reports were factually sufficient to make out a Brady claim. But the
legal posture of Slutzker’s petition might well have rendered relief
unavailable to him, and the fact that he could make out a Brady
claim would have done him little good if he had no way of actually
obtaining review of that claim.
        Thus, because of the Commonwealth’s failure to disclose
the police reports in a timely fashion, and because of the legal
difficulties inherent in raising the Brady claim in September of
2001, we find that Slutzker has demonstrated cause for his
procedural default. As the law of this Circuit did not yet allow
Slutzker to stay his pending habeas corpus petition, and as
dismissing that petition would render a re-filing untimely, Slutzker
faced an “objective impediment” to filing a second PCRA petition
in state court. 12
        There remains the question of prejudice stemming from
Slutzker’s default. The analysis of prejudice for the procedural
default of a Brady claim is identical to the analysis of materiality
under Brady itself. Strickler v. Greene, 

, 282 (1999);
see also Banks v. Dretke, 

, —, 

, 1276



       12
          This conclusion does not depend upon Slutzker’s pro se status,
as even an experienced attorney would have found no appealing
alternative to procedural default here. Thus this case is readily
distinguishable from Caswell v. Ryan, 

, 862 (3d Cir. 1992).
In Caswell, we noted that the Murray v. Carrier definition of cause,
requiring an “objective factor external to the defense,” applied to pro se
as well as represented petitioners, and held that a pro se petitioner’s
failure to file a timely petition for allocatur in the Pennsylvania courts
was a procedural default unexcused by cause and prejudice. But Caswell
missed a PCRA deadline due to mere inadvertence or negligence,
whereas Slutzker defaulted because he had a pending federal habeas
petition, which could have been jeopardized by bringing a new state
petition.

                                   18
(2004). If the withheld evidence was material to Slutzker’s trial,
then barring his petition on procedural grounds would create
prejudice. We therefore turn to the merits of the Brady claim; we
discuss materiality under Brady, and thus prejudice for the
procedural default, in Part II.C.2, infra. As will appear, we find that
there was in fact prejudice, and we conclude that Sluztker has
demonstrated cause and prejudice sufficient to excuse his
procedural default.

                 C. The Merits of the Brady Claim

        It is clearly established that “the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
or to punishment.” Brady v. Maryland, 

, 87 (1963).
Brady thus envisions two requirements for overturning a verdict:
(1) that evidence in the possession of the government was actually
suppressed, and (2) that the suppressed evidence was material. In
this case, the Commonwealth disputes both prongs of this test.
        Because of Slutzker’s failure to bring this claim before any
Pennsylvania court, there is no state court decision on the merits of
the Brady claim to which we owe deference under AEDPA. See
infra Part III. We therefore analyze the issue de novo.

                    1. Withholding of evidence

       First, the Commonwealth argues that there is no proof that
the twenty-one police reports that Slutzker received on September
11, 2001, had actually been withheld from him at his original trial.
The Assistant District Attorney who had prosecuted Slutzker at his
1991-1992 trial stated, during Slutzker’s 1997 PCRA hearing, that
she had turned over all documents in her possession, and that this
was her common practice.
       Slutzker, however, offers substantial evidence that the
documents were not, in fact, turned over prior to trial. While
Slutzker’s trial attorney, Charles Scarlata, died prior to September
2001, his PCRA attorney, Chris Eyster, has represented that the
twenty-one disputed police reports were not in Scarlata’s file when
Eyster reviewed that file in developing the PCRA petition. Also
probative is the fact that Scarlata, at trial, stated that Cynthia

                                  19
DeMann was “interviewed twice” and “failed to identify” Slutzker.
One of the disputed reports was of a third interview with Mrs.
DeMann, in which she not only “failed to identify” Slutzker, but in
fact positively stated that the man she saw was not Slutzker, and
was significantly shorter than Slutzker. Scarlata never impeached
Mrs. DeMann with these statements, though she was a crucial
prosecution witness and he had impeached her with her prior
failures to identify Slutzker. We view this omission as significant
evidence that Scarlata did not, in fact, have the third DeMann
report at the time of Slutzker’s trial.
        We are therefore not at all convinced by the
Commonwealth’s contention that the disputed reports had been
turned over to the defense prior to trial. The Commonwealth’s only
evidence for this claim is a general statement by the prosecutor that
it was her practice to turn over evidence to the defense; against
this, there is both testimonial and circumstantial evidence
indicating that the defense did not have access to the reports. It
seems clear enough that Slutzker did not have access to the police
reports before trial, and therefore that the first Brady prong is
satisfied.13

                              2. Materiality

        We next consider whether the suppressed police reports


        13
          There is a surprising dearth of precedent regarding the burden
of proof of nondisclosure of Brady evidence. But see United States. v.
Earnest, 

, 910 (7th Cir. 1997) (“To be entitled to relief
under Brady, the defendant must establish 1) that the prosecution
suppressed evidence; 2) that the evidence was favorable to the defense;
and 3) that the evidence was material to an issue at trial.” (internal
quotation marks omitted and emphasis added)). We note that, in general,
the prosecution is more likely to have knowledge of the contents of its
files; traditionally, the burden of proof is allocated to the party that is
better able to inform itself about the issue. Cf. Campbell v. United States,

, 96 (1961) (“[T]he ordinary rule, based on considerations of
fairness, does not place the burden upon a litigant of establishing facts
peculiarly within the knowledge of his adversary.”). Nonetheless we
need not decide this issue here, as Slutzker’s showing that the reports
were withheld is convincing, and the Commonwealth has not put
forward any forceful evidence to the contrary.

                                    20
were “material either to guilt or to punishment.” 

. The Supreme Court has elucidated the Brady materiality
standard as follows:
        [The] touchstone of materiality is a “reasonable
        probability” of a different result, and the adjective is
        important. The question is not whether the defendant
        would more likely than not have received a different
        verdict with the evidence, but whether in its absence
        he received a fair trial, understood as a trial resulting
        in a verdict worthy of confidence.
Kyles v. Whitley, 

, 434 (1995). Evidence that tends to
impeach prosecution witnesses may be material under this
standard. United States v. Bagley, 

, 676 (1985).
        The District Court here found that two of the undisclosed
police reports were material. The first of these was the January 15,
1976, Cynthia DeMann interview. As noted above, Mrs. DeMann
stated in this interview that the man she saw speaking to Arlene
Mudd after the murder was not Slutzker, but was significantly
shorter than Slutzker. At trial, fifteen years later, Mrs. DeMann
testified that this man was, in fact, Slutzker; hence there is little
doubt that the January 15 report constitutes material impeachment
evidence. It directly contradicts M rs. DeMann’s trial testimony.
While the defense was able to impeach Mrs. DeMann with two
other police reports in which she failed to identify the man she saw
speaking with Arlene Mudd, there is a significant difference
between a failure to identify Slutzker and a definitive statement
that the man she saw was not Slutzker. The latter is much more
convincing impeachment evidence, and the failure to disclose it
leaves us in doubt that the trial verdict was worthy of confidence.
        This is particularly true because Mrs. DeMann was perhaps
the only credible eyewitness who testified to seeing Slutzker near
the scene of the crime. The other three witnesses may not have
been as believable to the jury as Mrs. DeMann. John Mudd Jr., who
was five years old at the time of the murder, testified to “recovered
memories” whose authenticity was strenuously disputed, and had
obvious incentives to incriminate Slutzker. Amy Slutzker, who was
six years old at the time of the murder and remembered nothing
else from that time of her life, also spoke of dubious memories, and
was obviously long estranged from her father. Officer Timothy
Brendlinger, who did not know Slutzker’s appearance as well as

                                 21
Mrs. DeMann did, was himself impeached at trial by the testimony
of his partner, Officer Mangano, and by the contents of a report
that he had made at the time of the murder. Officer Brendlinger’s
report failed to mention seeing Arlene Mudd talking to anyone
outside of her house on the night of the murder, and Officer
Mangano testified that Brendlinger had not mentioned his
identification of Slutzker at the time.
          As the Magistrate Judge put it, Mrs. DeMann “was the only
[eyewitness] who was truly a disinterested party, in that she had no
relation to the Commonwealth, the victim or the Petitioner.” Thus
we find that denying Slutzker the opportunity to impeach her with
her January 15 statement materially impacted the fairness of his
trial.14 Although the Commonwealth presented significant evidence
against Slutzker, the case for convicting him was far from
overwhelming. The eyewitness accounts placing him at the scene
were questionable, and the circumstantial evidence, while certainly
i n c r im i n a t i n g , w a s a l s o c o n s is t e n t w i t h o t h e r
conclusions—including that Arlene Mudd herself, or someone else
acting at her behest, killed Mudd. If Slutzker had had a fair
opportunity to impeach the most reliable eyewitness, the outcome
of his trial might well have been different.
          In sum, we agree with the District Court that the police
report describing Cynthia DeMann’s January 15, 1976, interview


        14
            The District Court also found that the statements of Dennis and
Susan Ward, two other neighbors of the Mudds, were material. We
cannot agree. The District Court read the Wards’ statements to “suggest
that the unidentified man trying to calm Mrs. Mudd down outside her
house, was actually Mrs. Mudd’s neighbor, Mr. Ward, not Petitioner,”
and determined that Slutzker’s attorney would have called them to testify
at trial if he had had access to the report. In fact, however, Mr. Ward told
the police that he spoke to Mrs. Mudd in front of his own house at least
ten minutes after the murder—not in front of the Mudd house
immediately after the murder. The Wards also made a number of
statements indicating that they believed Slutzker was involved in the
murder. We therefore do not agree either that the defense would likely
have called the Wards, or that their testimony would have proven helpful
to the defense. Furthermore, we agree with the District Court that the
remainder of the police reports do not meet the standard of materiality,
for essentially the reasons set forth in the Magistrate Judge’s Report and
Recommendations.

                                     22
was material evidence, and that the Commonwealth’s failure to
disclose it constituted a violation of due process. We reiterate that
this conclusion also bears on our procedural default analysis:
because we find that the report was material, we also find that
prejudice would result from Slutzker’s procedural default. 

Part II.B.3.d.

                 III. The Fifth Amendment Claim

        In addition, we review the trial court’s refusal to compel
Arlene Mudd (now Arlene Mudd Stewart) to testify. Arlene Mudd
testified at the 1976 coroner’s inquest that Slutzker was not present
at her house on the night of the murder. But she refused to testify
at Slutzker’s 1991-1992 trial, invoking her Fifth Amendment
rights, and the trial court did not force her to testify.
        Because the Pennsylvania trial court considered and rejected
Slutzker’s demand that Arlene M udd be compelled to testify, we
are limited in our review of that decision by AEDPA. Habeas relief
may not be awarded on a claim considered on its merits by a state
court unless the state court’s decision “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). Furthermore, the state court’s findings of fact “shall
be presumed to be correct,” and the petitioner has the burden of
rebutting this presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).
        There is no doubt that Arlene M udd had a Fifth Amendment
right to refuse to testify. She was herself a suspect in the murder,
and in fact originally had been charged as a co-defendant. Her
testimony might well have implicated her in the murder. Slutzker
argues, however, that Arlene waived the privilege by testifying at
the coroner’s inquest conducted after the murder in January 1976.
We disagree.
        The law is clear that “a witness, in a single proceeding, may
not testify voluntarily about a subject and then invoke the privilege
against self-incrimination when questioned about the details.”
Mitchell v. United States, 

, 321 (1999) (emphasis
added). On the other hand, “[i]t is settled by the overwhelming
weight of authority that a person who has waived his privilege of
silence in one trial or proceeding is not estopped to assert it as to

                                 23
the same matter in a subsequent trial or proceeding.” In re Neff,

, 152 (3d Cir. 1953) (refusing to compel testimony at
trial where witness had testified to the same matter in grand jury
proceedings). This is a general rule that would seem to apply with
great force to the coroner’s inquest. See generally Michael A.
DiSabatino, Annotation, Right of Witness in Federal Court To
Claim Privilege Against Self-Incrimination After Giving Sworn
Evidence on Same Matter in Other Proceedings, 42 A.L.R. Fed.
793 (collecting cases). Thus, we think it clear that the trial court did
not err in refusing to compel Arlene Mudd’s testimony.
        The District Court’s thorough analysis of this issue focused
on the absence of any Supreme Court decision that directly
addresses whether a waiver of the Fifth Amendment privilege in
one proceeding waives the privilege in future proceedings, though
it mentioned in a footnote that the question is settled among the
Circuit Courts. The absence of such Supreme Court precedent is
sufficient to deny habeas relief on this grounds: as there is no
Supreme Court case on point, the trial court could not have decided
this case contrary to such a precedent, or so unreasonably applied
precedent as to fall within the AEDPA requirements. See 28 U.S.C.
§ 2254(d)(1).
        We note too that in United States v. Salerno, 

,
319-20 (1992), the Supreme Court seems to have accepted the
“hornbook law,” United States v. Fortin, 

, 1299
(11th Cir. 1982), that a witness who testifies before a grand jury
may nonetheless invoke his Fifth Amendment privilege if called to
testify at trial. Salerno concerned the question whether transcripts
of the witness’s grand jury statements could be admitted at trial
when the witness claimed the Fifth Amendment privilege; it did not
specifically address whether that assertion of the privilege was
proper. The District Court noted that “the Salerno Court never
considered, nor even discussed, the issue of whether the witness
had waived his right to invoke the Fifth Amendment privilege by
testifying previously before the grand jury.” While this is true, we
think it significant that Salerno did not question the rule, accepted
by this Circuit and most others, that testimony in one proceeding
does not bar a witness from asserting the Fifth Amendment
privilege in a separate proceeding.
        Therefore, we hold that Arlene M udd’s testimony at a
coroner’s inquest did not waive her Fifth Amendment right against

                                  24
self-incrimination in a criminal prosecution conducted fifteen years
later, and we decline to grant habeas relief on this basis.

              IV. The Ineffective Assistance Claim

        The District Court also granted habeas relief on the ground
that Charles Scarlata, Slutzker’s trial lawyer, provided
constitutionally ineffective assistance in violation of Slutzker’s
Sixth Amendment right to counsel. The basis for this determination
was the fact that Scarlata had not called Slutzker’s friends Janet
and Patrick O’Dea as alibi witnesses at Slutzker’s trial, nor had he
interviewed them in preparing for trial. Slutzker argues that the
O’Deas would have provided compelling alibi testimony that could
have changed the outcome of his trial. The Commonwealth, on the
other hand, contends that Scarlata’s decision not to call or
interview the O’Deas was a sound tactical judgment, and that they
would have been subject to impeachment about their personal
involvement in or knowledge of the murder that would have proven
disastrous to Slutzker’s defense.
        Inasmuch as we are affirming the grant of habeas corpus
because of the failure to provide the defendant with the Brady
material, we do not find it necessary to reach the District Court’s
decision on the ineffective assistance claim. The legal standards in
this area are somewhat unsettled, in part because one of our recent
decisions, holding that an attorney’s decision not to interview all
possibly relevant witnesses does not necessarily constitute
ineffective assistance, is being reviewed by the Supreme Court. See
Rompilla v. Horn, 

(3d Cir. 2004), cert. granted,
Rompilla v. Beard, 

(Sept. 28, 2004). Therefore, we
find it prudent to avoid ruling on the District Court’s decision on
this issue.

                          V. Conclusion

         For the foregoing reasons, we will affirm the order of the
District Court granting habeas corpus relief on the ground that the
prosecution’s failure to disclose the twenty-one police reports
denied Slutzker due process. We will also affirm the denial of
habeas relief for the trial court’s failure to compel Arlene M udd to
testify.

                                 25
        The parties expend much energy in debating the ambiguity
of the District Court’s order, which stated only “that the petition for
writ of habeas corpus is GRANTED” without specifying the exact
form of relief provided. We therefore will modify that order to
require the Commonwealth to release Slutzker unless it retries him
within 120 days. See Herrera v. Collins, 

, 403 (1993)
(“The typical relief granted in federal habeas corpus is a
conditional order of release unless the State elects to retry the
successful habeas petitioner . . . .”).




                                  26