(1981). It may not be presumed that a state court will
not entertain the claim, even if consideration seems
highly unlikely. Toulson v. Beyer, 987 F.2d at 987-88. In
questionable cases, the state courts should make the
determination as to whether the claim is procedurally
barred. Lines v. Larkins, 208 F.3d at 163. The federal
court must be able to say with certainty that the state
courts will not consider the substantive claim before
exhaustion will be excused. Id. at 163.
Inexcusable or inordinate delay by the state in
processing claims for relief may “render the state remedy
effectively unavailable.” Wojtczak v. Fulcomer, 800 F.2d
353, 354 (3d Cir. 1986) (thirty-three month delay in
deciding post-conviction relief petition was sufficient to
excuse exhaustion requirement); accord, Moore v. Deputy
Commissioner(s) of SCI-Huntingdon, 946 F.2d 236 (3d
Cir. 1991), cert. denied, 503 U.S. 949, 112 S.Ct. 1509,
117 L.Ed.2d 647 (1992) (where petition for post-
conviction relief had been pending in state court for
nearly three years, exhaustion was futile and could be
waived); Hankins v. Fulcomer, 941 F.2d 246 (3d Cir.
1991) (eleven-year delay); Burkett v. Cunningham, 826
F.2d 1208 (3d Cir. 1987) (five-year delay); Codispoti v.
Howard, 589 F.2d 135 (3d Cir. 1978) (twelve years).
Such delay will not automatically excuse exhaustion;
rather, it shifts to the state the difficult burden of showing
that exhaustion should still be required. Story v. Kindt, 26
F.3d 402, 405 (3d Cir. 1994).
Where state procedural rules bar the applicant from
seeking further relief in state courts, the exhaustion
requirement is satisfied, notwithstanding that the claim
has not been “fairly presented” in the state courts,
“because there is ‘an absence of available State corrective
process.’” McCandless v. Vaughn, 172 F.3d 255, 260 (3d
Cir. 1999). In such cases, however, applicants are
considered to have procedurally defaulted their claims
and federal courts may not consider the merits of such
claims unless the applicant establishes ‘cause and
prejudice’ or a ‘fundamental miscarriage of justice’ to
excuse his or her default.” Id.; Lines v. Larkins, 208 F.3d
153 (where the courts of Pennsylvania no longer had
jurisdiction to entertain a successive post-conviction
relief application, petitioner was foreclosed from further
state review and it would be “futile” to require the
petitioner to return to state court to exhaust, the
petitioner was excused from the exhaustion requirement;
petitioner was required, however, to establish “cause and
prejudice” for the procedural default or a fundamental
miscarriage of justice before the federal court could review
the unexhausted claim).
The presence of an unexhausted claim usually
requires the dismissal of the entire petition. Rose v. Lundy,
455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379. Upon
such dismissal, the district court may appropriately
instruct a petitioner to bring only exhausted claims when
he or she returns to federal court or risk dismissal with
prejudice. Slack v. McDaniel, 529 U.S. 473, 120 S.Ct.
1595, 1606, 146 L.Ed.2d 542 (2000).Pursuant to 28 U.S.C. § 2254(b)(2), however, the
district court may nonetheless deny the petition on the
merits despite a petitioner’s failure to exhaust state
remedies. This discretion may be exercised only when “it
is perfectly clear that the applicant does not raise a
colorable federal claim,” Lambert v. Blackwell, 134 F.3d
at 512; accord, Jones v. Morton, 195 F.3d 153, 156 n. 2
(3d Cir. 1999). If a question exists as to whether the
claim is colorable, 28 U.S.C. § 2254(b)(2) may not be
invoked. Id. Moreover, under revised 28 U.S.C. §
2254(b)(3), a State’s waiver of the nonexhaustion defense
will not be inferred; an express waiver of the defense is
required. Lambert v. Blackwell, 134 F.3d at 514.IX. PROCEDURAL DEFAULT
The principles governing procedural default of
claims have not been altered by the AEDPA. Moleterno
v. Nelson, 114 F.3d 629 (7th Cir. 1997). A habeas
petitioner who has suffered a procedural default of a
constitutional issue is required to demonstrate “cause for
the procedural default and prejudice attributable thereto
in order to obtain review of his defaulted constitutional
claim.” Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct.
2639, 91 L.Ed.2d 397 (1986); Coleman v. Thompson,
501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991);
Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53
L.Ed.2d 594 (1977); Doctor v. Walters, 96 F.3d 675, 683
(3d Cir. 1996). Accord, Harris v. Reed, 489 U.S. 255,
262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). “The
procedural default doctrine and its attendant ‘cause and
prejudice’ standard are ‘grounded in concerns of comity
and federalism.’” Edwards v. Carpenter, 529 U.S. 446,
120 S.Ct. 1587, 146 L.Ed.2d 518 (2000) (quoting from
Coleman v. Thompson, 501 U.S. at 730, 111 S.Ct. 2546,
115 L.Ed.2d 640). If the decision of the highest state
court considering a defendant’s federal claims “rests on a
state law ground that is independent of the federal
question and adequate to support the judgment,” then,
with few exceptions, the federal court will not consider
any question of federal law resolved by the state court.
Coleman v. Thompson, 501 U.S. at 729; Cabrera v. Barbo,
175 F.3d 307, 312 (3d Cir.), cert. denied, 528 U.S. 886,
120 S.Ct. 205, 145 L.Ed.2d 173 (1999); Neely v.