Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-3-2007

Leyva v. Williams
Precedential or Non-Precedential: Precedential

Docket No. 05-2371




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                                                 PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT



                            No. 05-2371



                       ARMANDO LEYVA,

                                        Appellant

                                 v.

   ANTONIO WILLIAMS, PROBATION OFFICER; THE
      DISTRICT ATTORNEY OF THE COUNTY OF
  PHILADELPHIA; THE ATTORNEY GENERAL OF THE
            STATE OF PENNSYLVANIA,



           On Appeal from the United States District Court
              for the Eastern District of Pennsylvania
                       (D.C. No. 04-cv-03697)
             District Judge: Honorable Anita B. Brody


                      Argued March 12, 2007

 Before: FUENTES, VAN ANTWERPEN, and SILER,* Circuit
                       Judges.



                      (Filed: October 3, 2007)


       *
         The Honorable Eugene E. Siler, Jr., Senior Circuit Judge
for the United States Court of Appeals for the Sixth Circuit, sitting
by designation.
David L. McColgin (Argued)
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

       Counsel for Appellant.

Joshua S. Goldwert (Argued)
Ronald Eisenberg
Office of the District Attorney
Three South Penn Square
Philadelphia, PA 19107-3499

       Counsel for Appellees.




                   OPINION OF THE COURT



FUENTES, Circuit Judge.

       Armando Leyva was convicted in Philadelphia’s Court of
Common Pleas of statutory sexual assault and corruption of a
minor. Leyva, who was thirty-five years old at the time, had
engaged in a six-month sexual relationship with a teenage girl who
attended his church. He was sentenced to eleven-and-a-half to
twenty-three months in prison, followed by three years of
probation.

       Represented by new appellate counsel, Leyva sought direct
and collateral state court review of his conviction, asserting various
claims of ineffective assistance of trial counsel. Among these
claims, Leyva contended that trial counsel had a conflict of interest
arising from his former representation of the complainant’s
mother’s ex-boyfriend. He also claimed that trial counsel had

                                  -2-
received an offer from the complainant’s mother to drop the
charges against Leyva in exchange for $5,000. According to
Leyva, trial counsel was ineffective for failing to withdraw his
representation in order to testify about these facts. Pennsylvania’s
courts denied review of some of Leyva’s claims because he failed
to submit affidavits that trial counsel or the complainant’s mother
were “available and willing” to testify; they declined to review
other claims after Leyva was released from custody.

       Leyva raised his ineffectiveness claims in a federal petition
for habeas corpus. The District Court dismissed the petition after
concluding that Leyva’s failure to comply with Pennsylvania’s
procedural requirements constituted a procedural bar to federal
review. Because we disagree, we will vacate and remand for
further proceedings.

              I. Factual and Procedural Background

       On July 21, 1999, Armando Leyva was tried before a judge
in Philadelphia’s Court of Common Pleas on charges of
involuntary deviate sexual intercourse, statutory sexual assault,
corruption of a minor, and indecent assault.1 The prosecution’s
principal witness at trial was an adolescent girl, L.B., who attended
the church where Leyva was an organist. According to her
testimony, during the first six months of 1998, when she was
fourteen years old, the two carried on a consensual sexual
relationship. According to Leyva, the two had never engaged in
any sexual conduct.

        A central issue at trial was L.B.’s credibility. During
cross-examination, Leyva’s attorney attempted to introduce
evidence of a “previous perjury.” App. 235. Specifically, he
questioned L.B. about a prior accusation of sexual assault she had
made against Wilfredo Lopez (her mother’s former boyfriend), but
later recanted. Lopez, it came to light, had been represented by
Leyva’s attorney at the time of the accusation, so the attorney was
familiar with the surrounding facts. He questioned L.B. about
whether she was pressured by her mother into making the


       1
           Leyva waived his right to trial by jury.

                                  -3-
accusation against Lopez. L.B. maintained the accusation had been
truthful, explaining that she later recanted it because she was afraid
of Lopez, and because Leyva’s attorney asked her to say “nothing
happened.” App. 257, 253.

       At the conclusion of trial, the judge found Leyva guilty of
statutory sexual assault and corruption of a minor, in violation of
18 Pa. Stat. §§ 3122.1 and 6301, respectively. Because of the
evidence about L.B.’s recanted accusation, the judge gave Leyva
“the benefit of the doubt as far as involuntary deviate sexual
intercourse is concerned,” finding him not guilty of that more
serious offense. App. 305.2 On September 16, 1999, he sentenced
Leyva to eleven-and-a-half to twenty-three months in prison,
followed by three years’ probation.

        On appeal, Leyva retained a new attorney who submitted to
the trial court a statement of matters complained of on appeal, as
required under Pennsylvania Rule of Appellate Procedure 1925(b).
Notably, he included an affidavit from Leyva’s wife stating that
trial counsel told her and Leyva that L.B.’s mother offered to drop
the charges against Leyva in exchange for $5,000.3 In response,
the trial judge issued an opinion concluding that Leyva’s claims of
ineffectiveness warranted a new trial. This opinion was without
effect, however, because the case was already on appeal before the
Superior Court.4

       2
           He also found Leyva not guilty of indecent assault.
       3
         Leyva also submitted an affidavit from Jose Rojas, who
stated he had previously been wrongly accused by L.B. of sexual
assault.
       4
         Under Pennsylvania Rule of Appellate Procedure 1925
(amended July 25, 2007), a trial court must issue an opinion
providing the reasons for an order, or any rulings or other matters
complained of on appeal. According to the Pennsylvania Superior
Court, “[w]hen a trial court prepares a Rule 1925 opinion, it no
longer has the jurisdiction to grant or deny a defendant’s motion for
a new trial. Rather, the court can only explain its trial and
post-trial actions in the Rule 1925 opinion.” Commonwealth v.
Clinton, 

, 1239 (Pa. Super. Ct. 1996) (citation

                                 -4-
        On appeal, Leyva argued that trial counsel was ineffective
for: failing to interview several potential witnesses; failing to
withdraw based on a conflict of interest because of his prior
representation of Lopez; failing to present L.B.’s mother as a
witness; and failing to withdraw from representing Leyva in order
to testify at trial.

       On October 17, 2002, the Superior Court affirmed Leyva’s
conviction. The court disposed of Leyva’s first two claims on the
merits, concluding that neither trial counsel’s failure to interview
the witnesses identified by Leyva, nor the alleged conflict of
interest constituted error or prejudiced Leyva. Regarding Leyva’s
second two claims, the court declined to reach them on the merits,
concluding that Leyva had failed to present affidavits indicating
that L.B.’s mother or Leyva’s trial counsel would have testified.5

       Leyva petitioned for reconsideration, and shortly thereafter
petitioned the Pennsylvania Supreme Court for allowance of
appeal. Both petitions were denied. On August 5, 2004—four
days before the expiration of his probation—Leyva filed a petition
for collateral relief under Pennsylvania’s Post Conviction Relief
Act (“PCRA”), raising additional claims of ineffective assistance
of counsel. A few months later, however, the Court of Common
Pleas summarily dismissed the PCRA petition because Leyva was
no longer in custody.

       On the same day that Leyva filed his PCRA petition, he also
filed a petition for habeas corpus in federal court. His petition
raised five grounds for relief:




omitted); see also Hull v. Kyler, 

, 100-01 (3d Cir.
1999) (discussing Rule 1925).
       5
         As discussed below, this decision was based on the court’s
reading of Commonwealth v. Khalil, 

, 422 (Pa. Super.
Ct. 2002), which ruled that “[i]neffectiveness for failing to call a
witness will not be found where a defendant fails to provide
affidavits from the alleged witnesses indicating availability and
willingness to cooperate with the defense.” App. 363.

                                -5-
       (1) Trial counsel was ineffective because he (a)
       failed to withdraw in order to testify about the efforts
       of L.B.’s mother to obtain $5,000 from Leyva in
       exchange for dropping all the charges against him,
       and (b) failed to call L.B.’s mother as an adverse
       witness.

       (2) Trial counsel was ineffective for (a) failing to
       withdraw his representation in order to testify after
       L.B. stated at trial that she was pressured by trial
       counsel to drop the charges against Lopez, and (b)
       having a conflict of interest because he previously
       represented Lopez.

       (3) Trial counsel was ineffective and had a conflict
       of interest because he failed to present evidence that
       L.B.’s mother was motivated to lie (and to pressure
       her daughter to lie) because she was cooperating
       with the government in an unrelated case.

       (4) Trial counsel was ineffective for failing to
       request evidence of L.B.’s mother’s cooperation
       agreement with the government in an unrelated case.
       Moreover, the government’s failure to turn over this
       evidence rendered his conviction unconstitutional.

       (5) Trial counsel was ineffective for failing to
       introduce evidence about L.B.’s previous accusation
       against Jose Rojas.

App. 613-14.

        The District Court referred Leyva’s petition to a Magistrate
Judge, who recommended denying relief for three reasons. Leyva
v. Williams, No. Civ.A. 04-3697, 

, at *2 (E.D. Pa.
Mar. 30, 2005). First, the Magistrate Judge concluded that claim
1(a) was procedurally defaulted because Leyva failed to comply
with Pennsylvania’s “affidavit rule” when presenting his claim in
state court. 

Second, she concluded that claims 1(b), 2(a),
3, and 4 were procedurally defaulted because Leyva failed to
comply with Pennsylvania’s custody requirement for bringing a

                                 -6-
PCRA petition.6 Finally, reaching the merits of claims 2(b) and 5,
the Magistrate Judge concluded that Leyva had not demonstrated
that the state court decision was contrary to, or an unreasonable
application of, clearly established federal law under 28 U.S.C. §
2254(d). Leyva, 

, at *6-7.

       Leyva did not object to the Magistrate Judge’s report and
recommendation, and the District Court adopted it in full. On
November 14, 2005, we granted a certificate of appealability,
requesting that Leyva address whether his claims had been
procedurally defaulted.

            II. Jurisdiction and Standard of Review

       A.      Jurisdiction

        A federal court has jurisdiction to entertain a habeas petition
under 28 U.S.C. § 2254(a) “only if [a petitioner] is in custody in
violation of the constitution or federal law.” DeFoy v.
McCullough, 

, 441 (3d Cir. 2005); see also Obado v.
New Jersey, 

, 717 (3d Cir. 2003) (“[F]or a federal
court to have jurisdiction, a petitioner must be in custody under the
conviction he is attacking at the time the habeas petition is filed.”).
The term “custody” extends beyond physical confinement, and
encompasses other “significant restraints on . . . liberty” that are
“not shared by the public generally.” Jones v. Cunningham, 371


       6
        The Magistrate Judge also found that Leyva’s procedural
default could not be excused because, “[t]hough petitioner has
alleged cause and prejudice for this default, he has not shown that
the court’s failure to consider this claim would result in a
fundamental miscarriage of justice.” Leyva v. Williams, No. Civ.A.
04-3697, 

, at *3 (E.D. Pa. Mar. 30, 2005). As
explained below, however, a petitioner’s procedural default may be
excused by a showing of “cause and prejudice” or a “fundamental
miscarriage of justice.” See, e.g., Lines v. Larkins, 

,
166 (3d Cir. 2000); McCandless v. Vaughn, 

, 260,
263 (3d Cir. 1999). See generally 2 James S. Liebman & Randy
Hertz, Federal Habeas Corpus Practice and Procedure §§ 26.3 &
26.4 (5th ed. 2005).

                                  -7-
U.S. 236, 242, 240 (1963). The requirement is satisfied when a
petitioner is on probation. Lee v. Stickman, 

, 342 (3d
Cir. 2004) (“It is . . . clear that being on probation meets the ‘in
custody’ requirement for purposes of the habeas statute.”). “In
making a custody determination, [federal courts look] to the date
that the habeas petition was filed.” Barry v. Bergen County
Probation Dept., 

, 159 (3d Cir. 1997); see also 

(“[W]hat matters for the ‘in custody’ requirement
is whether Lee was in custody at the time his habeas petition was
filed.”).

       Although Leyva was in custody when he filed his habeas
petition, he no longer is. After a petitioner’s release from custody,
we consider his habeas case moot unless he “can demonstrate he
will suffer some collateral consequences if his conviction is
allowed to stand.” 

, 442 n.3.
Significantly, though, we may presume “collateral consequences
when a litigant challenges a criminal conviction.” United States v.
Kissinger, 

, 181 (3d Cir. 2002) (citing Sibron v. New
York, 

(1968)); see also Spencer v. Kemna, 

, 8 (1998) (“In recent decades, we have been willing to presume
that a wrongful criminal conviction has continuing collateral
consequences . . . .”).

       In this case, the government does not dispute that Leyva
would suffer collateral consequences should his criminal
conviction be allowed to stand. Presuming such consequences, we
conclude that the District Court had jurisdiction pursuant to 28
U.S.C. §§ 2241 and 2254, and that we have jurisdiction under 28
U.S.C. §§ 1291 and 2253. See Jacobs v. Horn, 

, 99 (3d
Cir. 2005).

       B.     Standard of Review

       When a district court rules on a habeas petition without an
evidentiary hearing, our review is plenary. 

argues, however, that we should review only for “plain error,”
because Leyva failed to object to the Magistrate Judge’s report and




                                 -8-
recommendation.7 In Nara v. Frank, we held that “plain error
review [rather than de novo review] is appropriate where a party
fails to timely object to a magistrate judge’s [report and
recommendation] in habeas corpus cases.” 

, 196 (3d
Cir. 2007). Under plain error review, we reverse an error below
only if it was (1) “clear or obvious,” (2) “affect[ed] ‘substantial
rights,’” and (3) “seriously affected the fairness, integrity or public
reputation of judicial proceedings.” 

(quoting United
States v. Olano, 

, 732, 734 (1993)) (citation omitted).

        In Nara, a magistrate judge issued a report recommending
the district court grant a petition for habeas corpus. The
recommendation gave the parties ten days in which to file
objections to its determinations, warning that a “[f]ailure to file
timely objections may constitute a waiver of any appellate rights.”

The government failed to object, and the district court
adopted the recommendation. 

weeks later, the
government requested that the District Court vacate the order on
the grounds that it never received the Magistrate’s report and
recommendation. 

District Court could rule on the
request, the government appealed to this Court.

        On appeal, we applied plain error review, explaining that
this standard of review would “promote[] the effectiveness and
efficiency of the lower courts by compelling parties to promptly
contest dispositive issues before the magistrate judge and district
judge.” 

We also observed that the standard “afford[ed]
some level of appellate review to all dispositive legal issues raised
by a [report and recommendation],” but “g[a]ve substance to the
oft-repeated warning that ‘failure to timely object may risk the loss
of appellate rights.’” 

       In spite of Nara’s general rule, we decline to apply plain


       7
        Under Rule 8(b) of the Rules Governing Section 2254
Cases, “a district court is not required to determine de novo
whether a magistrate judge erred . . . in his or her report and
recommendation if no objection was made by a party on that
ground.” Medina v. Diguglielmo, 

, 426 (3d Cir.
2006).

                                  -9-
error review in this case. In Nara, the government was proceeding
with counsel and had received a clear warning from the magistrate
judge that “[f]ailure to file timely objections may constitute a
waiver of any appellate rights.” 

In contrast, there is no
indication that Leyva, a pro se litigant, was ever warned that his
failure to object to the Magistrate Judge’s report would result in the
forfeiture of his rights.8

        Without such a warning, we believe it would be inequitable
to deny a pro se litigant de novo appellate review. Cf. Welch v.
Heckler, 

, 266 (3d Cir. 1986) (“[W]e find that it
would be inappropriate to [require an objection in order to preserve
a right of appeal], where the language of the magistrate’s report did
not put [a party] on notice that he would be waiving his appellate
rights by not filing objections below.”). Indeed, some jurisdictions
have allowed an exception to the waiver of appellate rights when
such a waiver would defeat “the interests of justice.” See
Wirsching v. Colorado, 

, 1197 (10th Cir. 2004)
(recounting approach of several circuits).

        In particular, many jurisdictions provide an exception to the
waiver of appellate rights when a magistrate judge fails to inform
a pro se litigant of the consequences of failing to object. See
Moore v. United States, 

, 659 (10th Cir. 1991) (“We
join those circuits that have declined to apply the waiver rule to a
pro se litigant’s failure to object when the magistrate’s order does
not apprise the pro se litigant of the consequences of a failure to
object to findings and recommendations.”); see, e.g., Small v.
Sec’y of Health and Human Servs., 

, 16 (2d Cir. 1989)
(“[A] pro se party’s failure to object to a magistrate’s report and
recommendation . . . does not operate as a waiver of the right to
appellate review . . . unless the magistrate’s report explicitly states
that failure to object . . . will preclude appellate review and
specifically cites [certain relevant provisions].”); United States v.
Valencia-Copete, 

, 6 (1st Cir. 1986) (requiring


       8
         In Nara, we distinguished between “failing to timely
assert” a right, which results in “forfeiture” (and therefore plain
error review), and “waiver” of a right, which “extinguishes any
error.” Nara v. Frank, 

, 196 (3d Cir. 2007).

                                 -10-
magistrate judges “to give clear notice to litigants not only of the
requirements that objections must be specific and be filed within
ten days . . . but that failure to file within the time allowed waives
the right to appeal the district court’s order”); Wright v. Collins,

, 846 (4th Cir. 1985) (“[A] pro se litigant must receive
fair notification of the consequences of failure to object to a
magistrate’s report before such a procedural default will result in
waiver of the right of appeal.”); Wiley v. Wainwright, 

, 1412 n.1 (11th Cir. 1983) (“[Party’s] failure to object does
not limit his right to appeal since he was not informed that
objections had to be filed within ten days.”). Although these cases
address a waiver of appellate review, as opposed to a forfeiture, see
supra note 8, we believe they support an exception to the restriction
of our appellate standard of review.

       In sum, it would be inequitable to apply plain error review,
which is extremely limited, to the claims of a pro se litigant who
was not warned of the consequences of failing to object. We will
therefore review Leyva’s claims de novo.

                           III. Discussion

        On appeal, Leyva challenges the Magistrate Judge’s
determinations that most of his claims were procedurally defaulted,
as well as her merits ruling on part of his conflict of interest claim.
As set forth further below, we reach the following conclusions.
First, Leyva’s failure to submit an affidavit to establish that his trial
counsel or the complainant’s mother were available and willing to
testify does not result in procedural default of claim 1, because an
affidavit requirement is not an “adequate” state ground. Second,
Leyva’s failure to comply with Pennsylvania’s custody requirement
does not bar review of claims 2(a), 3, and 4, because Leyva’s
noncompliance with this requirement did not result from any
failure on his part. Finally, we agree with the government that
claim 2(b), concerning trial counsel’s prior representation of
Wilfredo Lopez, was properly denied by the Magistrate Judge on
the merits.9


       9
         Leyva does not address the Magistrate’s dismissal of
claim 5, and we assume he has conceded that it was properly

                                  -11-
      After briefly laying out the applicable habeas jurisprudence,
we will address each of our three bases for this decision.

       A.     Procedural Default

        A federal court may not grant a writ of habeas corpus under
§ 2254 unless the petitioner has “exhausted the remedies available
in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To do so,
a petitioner must “‘fairly present’ all federal claims to the highest
state court before bringing them in federal court.” Stevens v.
Delaware Corr. Ctr., 

, 369 (3d Cir. 2002) (quoting
Whitney v. Horn, 

, 250 (3d Cir. 2002)). This
requirement ensures that state courts “have ‘an initial opportunity
to pass upon and correct alleged violations of prisoners’ federal
rights.’” United States v. Bendolph, 

, 173 (3d Cir.
2005) (quoting Duckworth v. Serrano, 

, 3 (1981)).

        Even when a petitioner properly exhausts a claim, however,
a federal court may not review it on the merits if a state court’s
decision rests on a violation of a state procedural rule. Johnson v.
Pinchak, 

, 556 (3d Cir. 2004). This procedural bar
applies only when the state rule is “independent of the federal
question [presented] and adequate to support the judgment.” 

(citing Gray v. Netherland, 

(1996),
and Coleman v. Thompson, 

(1991)). The
requirements of “independence” and “adequacy” are distinct, see

, but only the adequacy requirement is
at issue here.

       A state rule is “adequate” for procedural default purposes if
it was “firmly established, readily ascertainable, and regularly
followed at the time of the purported default.” Szuchon v.
Lehman, 

, 327 (3d Cir. 2001).10 These requirements



dismissed. See United States v. Voigt, 

, 1064 n.4 (3d
Cir. 1996).
       10
          In assessing adequacy, we consider whether: “(1) the
state procedural rule speaks in unmistakable terms; (2) all state
appellate courts refused to review the petitioner's claims on the

                                -12-
ensure that “federal review is not barred unless a habeas petitioner
had fair notice of the need to follow the state procedural rule,” and
that review is foreclosed by “what may honestly be called ‘rules’
. . . of general applicability[,] rather than by whim or prejudice
against a claim or claimant.” Bronshtein v. Horn, 

,
707 (3d Cir. 2005).

          Finally, if a federal court determines that a claim has been
defaulted, it may excuse the default only upon a showing of “cause
and prejudice” or a “fundamental miscarriage of justice.” Lines v.
Larkins, 

, 166 (3d Cir. 2000). To satisfy the first
reason for excuse, the petitioner must show “some objective factor
external to the defense [that] impeded . . . efforts to comply with
the . . . procedural rule,” as well as prejudice. Slutzker v. Johnson,

, 381 (3d Cir. 2004) (quoting Murray v. Carrier, 

, 488 (1986)). To satisfy the second, the petitioner must
typically show “actual innocence.” Cristin v. Brennan, 

, 420 (3d Cir. 2002).

       B.      The Affidavit Rule

        Leyva alleged that trial counsel was ineffective for failing
to present evidence that L.B.’s mother offered to drop the charges
against him in exchange for $5,000. According to Leyva, this
evidence would have undermined the credibility of the
prosecution’s chief witness at trial, and his attorney should have
withdrawn in order to testify about the illicit offer. The
Pennsylvania Superior Court declined to hear this claim on the
grounds that Leyva had failed to submit an affidavit stating that
trial counsel would have been “available and willing” to testify.11




merits; and (3) the state courts’ refusal in this instance is consistent
with other decisions.” Jacobs v. Horn, 

, 117 (3d Cir.
2005) (quoting Doctor v. Walters, 

, 683-84 (3d Cir.
1996)).
       11
          On this same ground, the Superior Court declined to
consider Leyva’s ineffectiveness claim for failure to call L.B.’s
mother.

                                 -13-
        In denying Leyva’s claim, the Superior Court relied on
Commonwealth v. Khalil, 

(Pa. Super. Ct. 2002), in
which the defendant claimed trial counsel was ineffective for
failing to present exculpatory witnesses. In Khalil, the Superior
Court concluded that to pursue such a claim, a defendant is
required to provide affidavits from the missing witnesses
demonstrating their “availability and willingness to cooperate with
the defense.” 

After determining that unsworn
statements provided by the defendant were not affidavits under
Pennsylvania law,12 the Superior Court denied the claim.

       The Superior Court’s reliance on Khalil in dismissing
Leyva’s claim does not constitute a basis for procedural default.
An affidavit rule was neither firmly established nor regularly
applied at the time of Leyva’s purported default. As Leyva points
out, Khalil was issued on August 2, 2002, approximately seven
months after he filed his appellate brief. When Leyva filed his
appeal—at which point he would have been required to submit
affidavits—Pennsylvania’s courts did not require a defendant to
submit affidavits. See Doctor v. Walters, 

, 684 (3d Cir.
1996) (“We must decide whether the rule was firmly established
and regularly applied, not . . . when the Superior Court relied on it,
but rather as of the date of the waiver that allegedly occurred . . .
.”).

       Our review of precedent at that time reveals no such
requirement. For example, Khalil relied on Commonwealth v.


       12
            According to the court, an affidavit is:

       [a] statement in writing of a fact or facts signed by
       the party making it, sworn to or affirmed before an
       officer authorized by the laws of this Commonwealth
       to take acknowledgments of deeds, or authorized to
       administer oaths, or before the particular officer or
       individual designated by law as the one before whom
       it is to or may be taken, and officially certified to in
       the case of an officer under his seal of office.

       

(quoting 1 Pa. Stat. § 1991).

                                 -14-
Davis, 

(Pa. Super. Ct. 1989), which set out the
following elements of a “missing witness” ineffectiveness claim:

       (1) the witness existed; (2) the witness was available;
       (3) counsel was informed of the existence of the
       witness or counsel should otherwise have known of
       him; (4) the witness was prepared to cooperate and
       testify for appellant at trial; and (5) the absence of
       testimony prejudiced appellant so as to deny him a
       fair trial.

The Davis court noted that no affidavits, or other
evidence, had been presented in support of the availability of most
of the defendant’s witnesses. It therefore dismissed the claims
relating to those witnesses. As Leyva correctly points out,
however, Davis “did not rule that affidavits were the only manner
in which the five requirements could be met,” Leyva’s Br. at 22.
In other words, the decision left open the possibility of other forms
of proof.

       Other Superior Court decisions preceding Khalil suggest
that an affidavit was not the only form of proof that could be
offered for a missing witness claim. In Commonwealth v. Fink, the
court stated that “to establish ineffectiveness for failing to call
witnesses, a defendant must illustrate that the witnesses were
available.” 

, 1249 (Pa. Super. Ct. 2002) (emphasis
added). In Commonwealth v. Lowery, the Superior Court stated
that a defendant needed to “demonstrate” the five factors of a
missing witness claim. 

, 800 (Pa. Super. Ct. 2001).
And in Commonwealth v. Petras, the court required a defendant to
“offer to prove at an appropriate hearing sufficient facts upon
which a reviewing court can” find ineffectiveness. 

,
485 (Pa. Super. Ct. 1987) (internal quotation marks and citation
omitted). None of these cases—which required an “illustration,”
a “demonstration,” or an “offer of proof”—ruled that an affidavit
was the only manner of satisfying a defendant’s burden.13


       13
           Even the government concedes that an affidavit is not
required and that “the actual rule is not so rigid or inflexible.” Gvt.
Br. at 27.

                                 -15-
        Furthermore, a few years before Leyva’s appeal, the
Supreme Court of Pennsylvania rejected a missing witness claim
when the defendant failed to “set forth the name of a single person
who was willing to testify” either “by affidavit or otherwise.”
Commonwealth v. Copenhefer, 

, 254 (Pa. 1998)
(emphasis added). In setting forth the requirements of such a
claim, the Supreme Court relied on Commonwealth v. Stanley, 

, 872 (Pa. 1993), which stated that “[t]he existence and
availability of the witness must be shown,” without specifying any
required method for doing so. These Supreme Court cases do not
support the application of an affidavit requirement at the time of
Leyva’s default.14

        In sum, the Superior Court denied review of Leyva’s claims
because he failed to submit an affidavit from trial counsel. Based
on the foregoing, Leyva did not have “fair notice of the need” to do
so in presenting his appeal. 

.
Accordingly, we conclude that an affidavit requirement was not
firmly established or regularly applied at the time of the purported
default.15 Leyva is therefore not barred from pursuing federal


       14
        Leyva contends that he sufficiently demonstrated that trial
counsel was available to testify under Pennsylvania law. We do
not consider whether his proffer was sufficient to meet
Pennsylvania’s procedural requirement for bringing his claim,
however, but limit our review to the state court’s basis for
dismissal, which was the affidavit requirement.
       15
         Cf. Albrecht v. Horn, 

, 116 (3d Cir. 2007)
(“The ‘unforgiving’ waiver rule was not ‘consistently and regularly
applied’ at the time of Albrecht’s default.”); 

(“Nara’s incompetency claim was not procedurally defaulted,
because Pennsylvania courts have frequently applied exceptions to
[the procedural rule].”); Bronshtein v. Horn, 

, 709 (3d
Cir. 2005) (“[T]the state procedural rule at issue in this case . . .
was not firmly established and regularly followed at the time in
question.”); 

(“The Pennsylvania Supreme
Court did not firmly establish its strict enforcement of the waiver
rule [until] more than a year after Jacobs’ PCRA petition was
denied.”); 

(“[I]t was not ‘firmly

                                -16-
review of his first claim on the merits.

       C.      The Custody Requirement

          The Magistrate Judge declined to reach the merits of claims
2(a), 3, and 4, because of procedural default. As the Magistrate
Judge explained, these claims were not raised on direct appeal in
the state courts, but were raised in Leyva’s PCRA petition. The
PCRA court dismissed this petition without a review on the merits
when Leyva’s term of probation ended because he had failed to
comply with the state law requirement that he be “currently serving
a sentence.” See 42 Pa. Stat. § 9543(a)(1)(i) (“To be eligible for
relief . . . the petitioner must plead and prove . . . that the petitioner
. . . is at the time relief is granted . . . currently serving a sentence
of imprisonment, probation or parole for the crime.”);
Commonwealth v. Ahlborn, 

, 720 (Pa. 1997).16

        Leyva argues that his noncompliance with Pennsylvania’s
custody requirement should not bar federal review of his claims.
Specifically, he argues that the requirement does not create a
procedural bar, but simply deprives him of “available State
corrective process” under § 2254(b). We have explained, however,
that the absence of state corrective process is generally an excuse
to the exhaustion requirement, see, e.g., Parker v. Kelchner, 

, 62 (3d Cir. 2005), not to the application of procedural
default. We have therefore applied procedural default when the
reason for the absence of state process is a petitioner’s failure to



established’ that Pennsylvania courts lacked the discretion to hear
an appeal first filed after custody had been restored.”).
       16
          Pennsylvania’s custody requirement for hearing PCRA
claims is more stringent than the federal jurisdictional requirement
for habeas corpus. In determining whether a petitioner is “in
custody,” federal law looks to the date the petition is filed, Barry
v. Bergen County Probation Dept., 

, 159 (3d Cir.
1997), whereas Pennsylvania law looks to the date the relief is
granted, 

. In this case, both petitions
were filed while Leyva was in custody, but neither was addressed
prior to his release.

                                  -17-
comply with state procedural rules. See, e.g., McCandless v.
Vaughn, 

, 260 (3d Cir. 1999) (“When a claim is not
exhausted because it has not been ‘fairly presented’ to the state
courts, but state procedural rules bar the applicant from seeking
further relief in state courts, the exhaustion requirement is satisfied
because there is ‘an absence of available State corrective process.’
In such cases, however, applicants are considered to have
procedurally defaulted their claims . . . .”) (quoting 28 U.S.C. §
2254(b)(1)(A)).

        This is not required here.            Noncompliance with
Pennsylvania’s custody requirement did not result from any failure
on the part Leyva, but simply from the expiration of his sentence.
This factor was outside Leyva’s control and need not form the basis
for a default. See Williams v. Taylor, 

, 432 (2000)
(“To say a person has failed in a duty implies he did not take the
necessary steps to fulfill it. He is, as a consequence, at fault and
bears responsibility for the failure.”). Indeed, we have previously
declined to treat a petitioner’s failure to comply with
Pennsylvania’s custody requirement as a basis for procedural
default. Coss v. Lackawanna County District Attorney, 

, 460 n.8 (3d Cir. 2000), rev’d on other grounds 

(2001) (“We view [the custody rule stated in] Commonwealth v.
Ahlborn not as erecting a ‘procedural bar,’ but as a statement that
there is no available state remedy. . . .”).

          Even if there had been a default, however, we would excuse
noncompliance with the custody requirement because Leyva has
shown “cause and prejudice.” As we have explained, there is
“cause” for noncompliance with a state rule, when “some objective
factor external to the defense impeded . . . efforts to comply with
the . . . rule.” 

(quoting 

). Here, Leyva’s failure to be in custody through the duration
of his PCRA petition resulted from factors beyond his control, and
cannot “fairly be attributed to him.” 

(quoting 

). Accordingly, Leyva has cause
for noncompliance.

       Moreover, Leyva can sufficiently show the prejudice needed
to excuse a procedural default. 

. The
very same judge who found Leyva guilty of statutory sexual assault

                                 -18-
and corruption of a minor later concluded that his ineffective
assistance claims warranted a new trial. Thus, if Leyva can
establish that his trial counsel was ineffective, that conclusion
would be enough to warrant a new trial. In this situation, it would
be prejudicial to deny Leyva consideration of his ineffective
assistance claims on the merits. Cf. Werts v. Vaughan, 

, 193 (3d Cir. 2000) (“In the context of an ineffective assistance
claim, we have stated that prejudice occurs where ‘there is a
reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been
different.’”) (quoting Sistrunk v. Vaughn, 

, 670 (3d Cir.
1996)).

      We thus conclude that Leyva’s claims are not defaulted on
account of his failure to be in custody.

       D.     Conflict of Interest

       Within his second habeas claim, Leyva alleged that trial
counsel represented him in spite of a conflict of interest created by
his former representation of L.B.’s mother’s boyfriend, Wilfredo
Lopez. The Pennsylvania Superior Court rejected this claim,
explaining that trial counsel’s “representation of Lopez, in an
unrelated matter, concluded three years before [Leyva’s] trial” and
only provided him additional information about L.B.; it thereby did
not constitute a conflict that was prejudicial to Leyva. App. 364.
The Magistrate Judge determined that this ruling was not “contrary
to or an unreasonable application of clearly established federal
law.” Leyva, 

, at *6-7. See 28 U.S.C. § 2254(d).

        Leyva does not attempt to rebut this determination, and
nowhere points out how trial counsel “actively represented
conflicting interests” in a way that “adversely affected [his]
performance.” Hess v. Mazurkiewicz, 

, 910 (3d Cir.
1998) (quoting Cuyler v. Sullivan, 

, 350 (1980)). We
do not believe it was “contrary to or an unreasonable application of
clearly established federal law” for the Superior Court to find no
constitutionally significant conflict of interest when trial counsel
represented Lopez prior to representing Leyva. Accordingly, we
will affirm this portion of the District Court’s dismissal.


                                -19-
                        IV. Conclusion

       We conclude that neither the affidavit rule nor the custody
requirement bar consideration of Leyva’s claims on the merits.
Accordingly, we vacate the dismissal of claims 1, 2(a), 3, and 4.
Because the merits of these claims have not been briefed or argued
before us, we will remand to the District Court for further
proceedings.
                             _______




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