William J. Nolan v. JAMES WYNDER, Warden, SCI-Dallas

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4063
WILLIAM J. NOLAN,
Appellant
v.
JAMES WYNDER, Warden, SCI-Dallas; ATTORNEY GENERAL OF THE
COMMONWEALTH OF PENNSYLVANIA; DISTRICT ATTORNEY OF LUZERNE
COUNTY; PA STATE ATTORNEY GENERAL
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 07-cv-00926)
District Judge: Honorable Malcolm Muir
Submitted Under Third Circuit LAR 34.1(a)
September 25, 2009
Before: BARRY, FISHER and JORDAN, Circuit Judges
(Opinion Filed: January 27, 2010)
OPINION
BARRY, Circuit Judge
On June 12, 2008, we granted a certificate of appealability to William J. Nolan

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permitting him to appeal two aspects of the District Court’s denial of his habeas petition.
For the following reasons, we will affirm in part and vacate in part and remand for further
proceedings consistent with this Opinion.
I.
Because we write solely for the parties’ benefit, we set forth only those facts
necessary to our analysis.
In 1991, Nolan was arrested and charged with numerous car thefts in both
Lackawanna and Luzerne Counties, Pennsylvania. He pled guilty to the Lackawanna
County charges, including nine counts of receiving stolen property and one count of theft
by deception, and was sentenced to ten consecutive sentences of imprisonment totaling
thirty to sixty years. The Lackawanna County convictions are not at issue in this appeal.
With respect to the Luzerne County charges, a jury convicted Nolan of six counts of theft
by unlawful taking and five counts of receiving stolen property. He was sentenced to an
aggregate of twenty-one to forty-two years imprisonment.
Following his direct appeal of the Luzerne County convictions, Nolan filed a
petition for post-conviction relief under 42 Pa. Cons. Stat. Ann. § 9541, et seq. That
petition, filed in 1999, enumerated twenty-one claims, spawning a lengthy and complex
procedural history. We, however, will address only the procedural events relevant to our
analysis.
The Court of Common Pleas (“PCRA Court”) initially dismissed Nolan’s petition

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Rule 2116 has since been amended and now provides that the statement of1
questions involved “shall be no more than two pages.”
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for post-conviction relief. In 2000, Nolan appealed that dismissal to the Superior Court.
In his brief to the Superior Court, Nolan included a three-page statement of questions
involved, thus violating Pennsylvania Rule of Appellate Procedure 2116(a) (“Rule
2116(a)”), which, at the time, required that a petitioner’s statement of questions involved
“must never exceed one page.” The Superior Court, after addressing only an ineffective1
assistance of counsel claim related to Nolan’s double jeopardy and compulsory joinder
arguments, remanded the case to the PCRA Court, instructing the PCRA court to vacate
the judgment of sentence and dismiss the Luzerne County charges. See Commonwealth v.
Nolan, 788 A.2d 1032 (Pa. Super. Ct. 2001).
The Commonwealth appealed to the Supreme Court of Pennsylvania, which
reversed. See Commonwealth v. Nolan, 855 A.2d 834 (Pa. 2004). The Supreme Court
remanded the matter to the Superior Court, directing the Superior Court “to consider the
issues raised by [Nolan] . . . that were not addressed in its [prior] opinion.” (App. 41.)
The Superior Court, in turn, remanded the matter to the PCRA Court, instructing the
PCRA Court to consider only four claims raised by Nolan – the four having been
enumerated on the first page of Nolan’s statement of questions involved. That limitation
was placed on the PCRA Court because of Nolan’s failure to comport his brief on appeal
to the Superior Court in 2000 to the requirements of Rule 2116(a).

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On remand, the PCRA Court concluded that the petition should be denied and
dismissed. The Superior Court affirmed, addressing the merits of only the four claims it
had remanded and holding that the balance of Nolan’s claims were waived due to his
failure to comply with Rule 2116(a). The Supreme Court denied Nolan’s petition for
allowance of appeal. Commonwealth v. Nolan, 917 A.2d 313 (Pa. 2007).
In 2007, Nolan filed this petition for a federal writ of habeas corpus, raising twenty
claims. The District Court first held that Claims III through VI (the claims addressed on
remand by the PCRA Court and the Superior Court) were addressed on the merits by the
state court and that the state court’s adjudications were neither contrary to established
federal law nor involved an unreasonable determination of the facts. The Court then
found that Claim I did not involve a federal constitutional claim and, accordingly, was not
cognizable on habeas review. As for Claims VII through XXI (there was no Claim XIX),
the Court concluded that they were procedurally defaulted due to Nolan’s failure to
adequately present them to the Superior Court in accordance with Rule 2116(a). Finally,
the Court found that the state court did not adjudicate Claim II in a manner that was
contrary to clearly established federal law or involved an unreasonable determination of
the facts.
On June 12, 2008, we granted a certificate of appealability limited to two
questions: (1) whether the District Court properly concluded that Claims VII through
XXI were procedurally defaulted; and (2) whether the District Court correctly applied the

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precepts of Brady v. Maryland, 373 U.S. 83 (1963) to Claim III.
II.
We exercise plenary review of the decision of the District Court denying, without
an evidentiary hearing, Nolan’s habeas petition. Thomas v. Horn, 570 F.3d 105, 113 (3d
Cir. 2009). The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254,
and we have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
A.
“A federal habeas court will not review a claim rejected by a state court if the
decision of [the state] court rests on a state law ground that is independent of the federal
question and adequate to support the judgment.” Beard v. Kindler, No. 08-992, – U.S. –,
2009 U.S. LEXIS 8944, at *4 (2009) (alteration in original; quotation omitted).
A state rule is adequate only if it is consistently and regularly applied.
While the state rule should be applied evenhandedly to all similar claims,
state courts only need demonstrate that in the vast majority of cases, the rule
is applied in a consistent and regular manner.
Doctor v. Walters, 96 F.3d 675, 684 (3d Cir. 1996) (quotations and citations omitted).
Put simply, “[a] procedural rule is adequate only if it is firmly established, readily
ascertainable, and regularly followed.” Szuchon v. Lehman, 273 F.3d 299, 325 (3d Cir.
2001) (emphasis added). Furthermore, “[t]hese conditions must have existed at the time
of the state court procedural default,” Cabrera v. Barbo, 175 F.3d 307, 313 (3d Cir.
1999), here, 2000, when Nolan filed his allegedly procedurally infirm appeal from the
denial of post-conviction relief with the Superior Court.

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The practice of addressing the merits of an issue despite a party’s non-compliance2
with Rule 2116(a) continued well after the filing of Nolan’s brief with the Superior Court.
See e.g., Commonwealth v. Beshore, 916 A.2d 1128, 1133 n.1 (Pa. Super. Ct. 2007);
Universal Underwriters Ins. Co. v. A. Richard Kacin, Inc., 916 A.2d 686, 689 n.6 (Pa.
Super. Ct. 2007).
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At the time Nolan filed brief with the Superior Court in 2000, Rule 2116(a)
provided that:
The statement of questions involved must state the question or questions in
the briefest and most general terms, without names, dates, amounts or
particulars of any kinds. It should not ordinarily exceed 15 lines, must
never exceed one page, and must always be on a separate page, without any
other matter appearing thereon. This rule is to be considered in the highest
degree mandatory, admitting of no exception; ordinarily no point will be
considered which is not set forth in the statement of questions involved or
suggested thereby.
Pa. R. of App. P. 2116(a) (emphasis added). Despite the apparent clarity of Rule 2116(a),
Appellees correctly concede that “[i]n some cases, the Pennsylvania courts have declined
to quash or dismiss appeals due to violations of [Rule 2116(a)].” (Appellees’ Brief at 15.)
Indeed, caselaw demonstrates that Pennsylvania courts prior to Nolan’s purported
procedural default routinely addressed the substantive merits of claims despite a party’s
failure to comply with the mandatory page limitation imposed by Rule 2116(a). See, e.g.,2
Commonwealth v. Stafford, 749 A.2d 489, 493 (Pa. Super. Ct. 2000); Conner v. Quality
Coach, Inc., 724 A.2d 379, 383 n.5 (Pa. Super. Ct. 1999), rev’d on other grounds, 750
A.2d 823 (Pa. 2000); Sell v. Sell, 714 A.2d 1057, 1059 (Pa. Super. Ct. 1998); Brown v.
Phila. Tribune Co., 668 A.2d 159, 161 n.1 (Pa. Super. Ct. 1995); Estate of Lakatosh, 656

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The Supreme Court’s recent decision in Beard v. Kindler, – U.S. –, 2009 U.S.3
LEXIS 8944, does not alter this standard. There, the Court held that facially discretionary
rules may be adequate to preclude habeas review. Id. at *14. Kindler did not, however,
address the adequacy of facially mandatory rules, such as Rule 2116(a), that state courts
apply inconsistently. Indeed, the Court declined to provide additional guidance on the
adequate state ground doctrine. Id. at *17.
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A.2d 1378, 1380 (Pa. Super. Ct. 1995).
The foregoing cases demonstrate that Rule 2116(a) is not “adequate” because it is
not “regularly followed.” Szuchon, 273 F.3d at 325. Therefore, we will remand this3
matter to the District Court for consideration of Claims VII through XXI.
B.
We also granted a certificate of appealability as to Claim III, in which Nolan
argues that the Commonwealth committed a Brady violation because he did not receive a
bill of particulars and pretrial discovery, and that his attorney was ineffective for failing
to raise this argument. We may not grant a habeas petition on a claim that was
adjudicated on the merits in state court unless that adjudication resulted in a decision that
was “contrary to, or involved an unreasonable application of, clearly established Federal
law” or “resulted in a decision that was based on an unreasonable determination of the
facts.” 28 U.S.C. § 2254(d).
In addressing this contention, the PCRA Court concluded that Nolan’s claim was
“not of arguable merit,” and that, in any event, even if counsel were ineffective, “the
outcome of the trial would not have been different.” (App. 45.) The Superior Court

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similarly found “no merit to [Nolan’s] claim,” and was “not persuaded by [Nolan’s]
assertion that he was prejudiced.” (App. at 55.) The District Court reviewed the state
court record and concluded that denial of this claim “did not result in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal law,”
nor was the result “based on an unreasonable determination of the facts in light of the
evidence presented.” (App. at 18.)
Nolan contends that he never received any discovery at all and specifically
identified the transcript of his preliminary hearing and evidence of his own crimen falsi
offenses as items to which he was entitled. But Nolan fails to point to anything
supporting this contention and ignores the rule that “Brady does not compel the
government to furnish a defendant with information which he already has or, with any
reasonable diligence, he can obtain himself.” See United States v. Pelullo, 399 F.3d 197,
213 (3d Cir. 2005) (quotation omitted). Moreover, Nolan fails to present any evidence
that he was prejudiced by the Commonwealth’s purported failures. Accordingly, we will
affirm the District Court’s decision on Claim III.
III.
For the reasons stated above, we will vacate and remand the District Court’s order
with respect to Claims VII through XXI, and will affirm with respect to Claim III.

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