Gary Lee Doctor v. Gilbert A. Walters

quence in was that Coleman IV. entertaining courts were from barred The district court did not reach Sistrunk’s

petitioner’s federal claims on their merits prosecutorial specific misconduct claim that showing prejudice absent a of cause and or a prosecution statements deprived him of innocence. The demonstration conse- of a fair trial. opportunity It will have an quence must be the same here. address that claim on remand. only perceive difference we between will judgment We reverse the of the dis- this case and Coleman is that the trict court proceed- and remand for further ings opinion. Court here did consistent with this address merits Sis- trunk’s Batson claim in the course of decid-

ing his constitutional claim of ineffective as- Harris,

sistance of counsel. We know from

however, that the doctrine in Cole-

man federal review even bars when the state

court addresses the merits of the holding. federal claim in an If alternative Gary DOCTOR, Appellant, Lee federal review of a federal claim is foreclosed when the state court addresses the merits of holding claim an alternative directed WALTERS, Appellee. Gilbert A. claim, surely to that federal review must also No. 95-3484. be foreclosed when the addresses the merits of the federal claim Appeals, States Court of another, resolving independent course of Third Circuit.

claim. Argued June 1996. Sept. Decided necessarily

It follows that district court was not free to consider Sis- Rehearing Sur Petition for Nov. claim trunk’s Batson on its merits absent a showing prejudice of cause and or a demon

stration that Sistrunk was innocent of the

crimes for which he was convicted. To show

cause, prove “that some

objective factor external to the defense im

peded comply counsel’s efforts to with the Carrier, Murray

State’s rule.” 478, 488, Counsel’s error cannot

constitute cause for default unless constitutionally

the error was also ineffective

under Strickland. Id. at 106 S.Ct. at proof

2647-48. Sistrunk offers no of cause prejudice other than counsel’s failure to

preserve appeal. the issue on direct Since performance have concluded ineffective,

was not and since the record con

tains no new evidence about the events un conviction,

derlying petitioner may Sistrunk’s

not raise the direct Batson claim on federal

habeas. respect folly litigated

available with to claims direct review in such a case.

Shelley (argued), Gerlaeh, Stark Karen S. Defender, PA, Federal Pittsburgh, Public for Appellant. Colville,

Robert E. Attorney, District Kem- Mercili, Broman, al Alexander Russel Thom- Farrell, (argued), as N. Assistant District Attorneys, Office of District Attorney, Pitts- burgh, Appellee. for PA ROTH, Judges, Before: Circuit SCIRICA * O’NEILL, Judge. and District THE OPINION OF COURT O’NEILL, Judge: District Gary appeals Petitioner Doctor the dis- petition missal his for a writ of habeas corpus. peti- The court below dismissed the tion because: Doctor failed to exhaust his remedies; courts refused to consider the merits of his appeals independent direct based on adequate rule. We conclude that Doctor did not exhaust his state reme- dies and that it require would not be futile to him to raise his unexhausted claims under Pennsylvania’s Post Relief Act. 42 Conviction * O'Neill, Jr., Pennsylvania, sitting by designation. The Honorable Thomas N. Judge States District for the Eastern District of § According- 2254 in the District Court (Supp.1996). United States §§ 9641-46 Pa.C.S. Pennsylvania. for the Western District of district court’s dismissal affirm the ly, will we court, adopting report district The petition. Because of Doctor’s magistrate judge, recommendation dis- petition with exhausted resubmit considering Doctor’s without missed address the district court’s also timely its merits. Doctor notice of filed dismissing basis second September to this Court. On ap- forfeiture rule as that the

hold granted the district re- independent was not an to Doctor plied quest probable for a cause to certificate adequate state appointed for him. counsel corpus habeas review. bar jurisdiction district court aggravated charged with as- Doctor was § over this matter under 28 U.S.C. 1986, 24, jurisdiction §§ July, 1985.1 On June dur- in We have under sault petitioner 2253. Our review of whether has his criminal ing lunch recess of bench plenary. exhausted his remedies is state trial, following presentation (3d Petsock, 639, Ross 868 F.2d Cir. case, Upon fled. Doctor Commonwealth’s 1989). return, the trial failure court Doctor’s a bench warrant recessed the issued EXHAUSTION 1986, 29, August proceedings. On trial Generally, petition §a which Doctor, against guilty a verdict court entered any must includes unexhausted claims conducting any apparently without further prejudice dismissed without for failure to Doctor, inform attempting proceedings all exhaust state created remedies. Rose v. attorney or the Commonwealth about its his 1198, 509, Lundy, 455 U.S. 102 S.Ct. a to enter verdict. intention (1982). satisfy L.Ed.2d 379 To the exhaus requirement petitioner present tion must large remained at for over Doctor five every petition claim raised in the federal January 25, was on years until he arrested each of the level state courts. Picard v. County, Pennsylvania. Butler On 1992 in Connor, 270, 509, 404 U.S. 92 S.Ct. 14,1992, April the trial court sentenced Doc- (1971). L.Ed.2d 438 The must of 49 to 98 months. On June tor to a term afford each level of the state courts fair pro filed a “Petition for Doctor se Ha- opportunity to claim. address the Anderson Corpus” Pennsylvania Supreme in the beas Harless, 103 S.Ct. 279-284, Court, Appendix which was denied The 1992. August on While was pleadings court briefs demonstrate timely appeal filed a pending, he direct presented legal theory that he has supporting facts in Superior May asserted the federal Court. On habe petition in such a manner that the claims Court, Superior reaching without raised in the state “substantially courts are claims, quashed of his the merits equivalent” to in federal those asserted court. pursuant Pa.RApp.P. Doctor’s (3d Fulcomer, Bond v. 1972(6). This forfeiture rule allows a Cir.1989). The courts need not discuss quash” court “to upon presented or base their decisions appellant fugitive.” is a “because the claims for those claims to be considered ex Superior The then denied Doctor’s Picard, hausted. at 92 S.Ct. Application Reargument. Pennsyl- Supreme vania Court denied Doctor’s Peti- court, findings The district adopting the Appeal opinion Allowance tion for without magistrate judge, concluded “Doc- 29,1993. on Thereafter the November Unit- tor’s 6th pre- Amendment claim was never Supreme ed Court denied States Doctor’s any Pennsylvania sented to appellate court.” petition for a writ of certiorari. Appendix at 301. pro On November Doctor filed a § In his asserts corpus petition following grounds se habeas under 28 U.S.C. for relief: receiving proper- subsequently ty 1. An additional stolen count of was dismissed. of trial of Absentia said to have or Court or

No record Court, we conclude that Aug. 29th was he has not. been held on 1986—I was convicted of law—I never brief to the Court on I told on record or otherwise was found direct did not include the Sixth given any appeal guilty was never Amendment claim he now asserts. —I sentencing. rights before or after No at- brief Doctor raised four issues: torney represented is on record to have me (1) whether the Defendant fugi- became a mysterious absentia trial held —the post-trial tive proceedings before com- stop transcripts my page trial case on thereby menced waiving rights pro- gen- 129 at which time case was continued appeal; ceed on mailing notice erally, this was on June 1986. The to Doctor’s address is sufficient notice to satisfy court docket shows a conviction date of constitutionally required pro- due April in on cess whenever an 1992—The individual suffer a 8/29/86 —written deprivation Judge liberty; of his opinion trial court has written an whether the (Com. trial court’s failure to advise Defendant of 1992 and Oct. cited cases rights, his Rule 1123 Jones) Lines, results de- 1992 and Com. fendant’s failure to file Post-Verdict Mo- Super do These eases tions, constitutes waiver Defendant of apply to me—but keep are stated to issue; appealable sufficiency reviewing another court from the record evidence. transcript both which will reveal there Appendix See at process 172-73. The 29th, due Aug. was no trial of absentia claim Superior raised Court brief chal- my Rights appeal to is has been 1986— lenges only whether Doctor received consti- by opinion obstructed lower Court’s false tutionally required notice of a trial in absen- and misconduct. tia. The brief does raise the issue of (Grounds) whether a trial in absentia ever occurred. 1. Due Process 14th Amendment Appendix Though See at inadequate 183-84. Right Appeal 2. to may implicate notice of a trial Sixth Amend- Rights 3. Post Verdict concerns, ment arising a claim from that lack of notice is distinct from a claim that no trial 4. 6th Amendment in absentia was Following ever held. Insufficient Evidence. Superior May Court’s 1993 order which Appendix at 144-45. quashed right appeal, his Doctor filed an § On Doctor states that his 2254 Application Reargument Pennsyl- includes Sixth Amendment claim Superior vania Appendix Court. at 202-05. alleging deprivation right of his to trial.2 Doctor, application counsel, In this through Appellant’s Reply (“By depriv- See Brief at 3 stated: trial, ing Doctor of a of course the Trial Trial Ap- Court’s decision to continue deprived also Doctor of all other Sixth pellant’s trial allows that Court to render a rights, ... Amendment But the critical viola- absentia, proof verdict in Ap- absent tion, arose, from which all other violations pellant received notice of the new trial date trial.”). deprivation was the of a appear. and then failed to This Court’s guilty permits prosecution claims that the trial court entered a decision and de- against conducting any guilt verdict him termination of of an without individual in any proceedings. absentia without notice of proceedings further in absentia or otherwise. gross The same is a violation of the due We must decide whether Doctor has satisfied process required by both the United States requirement by affording the exhaustion all Constitutions. op- levels of the courts a fair portunity to address this claim. claim, Because we argues Id. 203-04. Doctor that this adequately presented find that he has not explicitly invoking without the Sixth Amend- Pennsylvania Superi- ment, this claim to incorporates either the it reference to 14th provides part enjoy right speedy public The Sixth Amendment in relevant shall to a prosecutions, "[i]n all criminal the accused trial....” being without an official verdict if this were sentenced process. Even due Amendment allege in guilt.” Id. at 281. Doctor does legal principle of a is so, invocation mere with- this that a verdict was entered state courts of the apprise the insufficient conducting a trial in out the trial court ever of the claim he now legal theories facts challenge Though this to the valid- find that a absentia. cannot therefore We asserts. upon Doctor’s ity of the verdict does touch adequacy of notice of a concerning the claim challenge deprivation of his to a “substantially equivalent” to the in absentia trial trial, raising legal theory it falls short of ever no trial in absentia to a claim supporting Amendment necessary satisfy and facts the Sixth the ex- as occurred Bond, Doctor has not claim he now asserts. Thus requirement. See haustion Pennsylvania Supreme Court a Superior afforded the Court did not at 309. opportunity his claim. See fair to address to address Doctor’s opportunity have a fair Bond, F.2d at 309. that the trial court claim Amendment Sixth a trial in absentia. never conducted Moreover, original Doctor filed his the instant Sixth Doctor state Nor did corpus before he petition for a writ of habeas Pennsyl in his brief to the claim Amendment Superior filed his to the Court. In that brief Doctor Supreme Court. vania his ha Pennsylvania Supreme Court denied follows: framed the issues petition per and without corpus beas curiam (1) Superior Court’s decision to the opinion: whether while his direct contrary to the appeal is quash pending; Doctor’s Superior Court was still Supreme Court’s 1993 deci year United States over a before Doctor filed Petition States; Ortega-Rodriguez Appeal sion in for Allowance decision Court’s Under law Court. contrary appeal is “if quash corpus relief is not available habeas Harrison, Pa.Su [289 remedy may by post-conviction hear (Pa.Super.1981); law,” 432 A.2d 1083 per. proceedings 42 Pa. ing 126] authorized Trial reliance on 6503(b), Court’s “may § whether invoked C.S. Pa.R.A.P.1972(6) error, is in viola ordinary course have when remedies available; and Penn the United States tion of both or are not the writ been exhausted Constitutions; and sylvania appellate review.” is not a substitute for 583, without notice of in absentia prosecution Wolfe, Pa.Super. 413 gross denied, of an indi proceeding 1271, , is a violation appeal 531 Pa. 605 A.2d 1273 right pro (1992) (citations omitted); to due 646, Constitutional vidual’s 985 612 A.2d McNeil, cess. 445 see also Commonwealth 526, 1247, 665 A.2d 1250 at 221. This brief did not Appendix See (same). trial in absentia was never held. assert that a circumstances, pe- if however, presented Under these even his argues, he Doctor Pennsylva- corpus to the claim to the tition for a writ of habeas his Amendment Sixth separate, pro Supreme in a se Court included nia Court asserted, brought pursuant to 42 Amendment claim now his petition Pa.C.S. Sixth untimely § In and the exhaustion re- filed on June claims were 7213 and quirement arguably petition, “Defendant ... was not be satisfied. Doctor asserts Davis, Pittsburgh, Penna. was denied See Pitchess v. 421 U.S. 95 S.Ct. convicted in (1975) (exhaustion 5th and 14th Amendment 44 L.Ed.2d 317 re- due-process, under quirement where denial of Constitution and Article is satisfied under United States fairly extraordinary writ cannot be read as Appendix of Pa. Constitution.” at section 9 adjudication again on the merits “[defendant 280. He further asserts available); 14th Ex Parte process due under 5th and review denied Hawk, Constitution, 88 L.Ed. of U.S. and Under Amendment Constitution; by Article 1 section 9 of the Pa. Pennsylvania Supreme claims. Section 721 affords the jurisdiction corpus original over habeas attempts present to the Penn- state unlikely remedies even if it is that the courts his claim sylvania appellate that the state court would consider the merits to en- that, a trial trial court never conducted in absen- sure comity interests of “represent compli- federalism, tia does not substantial given state courts every op- are requirement.” ance the ... exhaustion with portunity to arising address claims from Bond, Therefore, F.2d at 309. Doctor proceedings. state Vasquez Hillery, See exhaust his state remedies must before he 254, 257, 106 S.Ct.

can seek federal habeas relief unless such an (1986); Toulson, 987 F.2d at attempt Beyer, would be futile. Toulson v. case, 987. In the instant all avenues of di- (3d Cir.1993). clearly are rect foreclosed. There- fore, must determine whether state col-

FUTILITY foreclosed,” lateral “clearly review is as to argues that even if he has not render proceedings further state futile. effectively exhausted Sixth Amendment criminal review of a con Collateral requiring claim him to return to state court viction is available in under the would be futile because the Act, Post Conviction Relief 42 Pa.C.S. courts, having already determined that he §§ (Supp.1996). 9541-46 eligible To be appeal, waived his to a direct will not PCRA, relief under petitioner address a under the PCRA. demonstrate that the claim has not been Though general § 9543(a)(3). § waived. “[A]n issue is waived if which includes unexhausted claims must petitioner could have raised it but failed be dismissed for failure to exhaust all state trial, trial, to do so before during unitary remedies, Lundy, 455 U.S. 102 S.Ct. review, prior or in a posteon- requirement 71 L.Ed.2d this does 9544(b). proceeding.” § vietion Id. at As apply when the unexhausted claims are noted, “nearly courts have case, proeedurally barred. such a al all claims are waived under the PCRA since though the unexhausted claims not have nearly potentially all claims could have been court, presented highest been appeal. raised on direct applies This even possible exhaustion is not because the state the first-time never has obtained procedural grounds court would refuse on appellate review.” Eaddy, Toulson, hear the merits of the claims. 614 A.2d 1207-08 (citations omitted); F.2d at 987 Clark denied, Commonwealth, 1142, 1147 (3d n. 6 (1993); Stark, 1155 accord Commonwealth v. Cir.1989). compliance In such instances is 127, 816, (1995). Pa.Super. 442 658 A.2d 820 any attempts excused because further to as appears Thus it that on collateral review the sert the claims would be futile. Pennsylvania courts would hold that Doctor right waived the to assert his Sixth Amend

A failure to exhaust is, however, claim on separate ment at least one of two only state remedies excused (1) grounds: “clearly when state because his submissions to the foreclose^] law Superior Pennsylvania Court court review of unexhausted Su [the] claims.” and/or Toulson, preme claim; If Court failed to 987 F.2d at 987. the federal raise that (2) fugitive court is uncertain how a state court because under the forfeiture rule issue, rights resolve a default it should he waived all to have his conside However, dismiss the for failure to exhaust red.4 we find that PCRA review Jones, 536, 4. We find that the courts would Commonwealth v. 530 Pa. 610 A.2d 439, (1992) (“A hold Doctor's claims waived under the voluntary escape 441 defendant's notwithstanding intervening per forfeiture right ap- acts as a se forfeiture of his of changes peal in that rule. .... Such a forfeiture is irrevocable and despite During pendency capture appeals continues the defendant’s or vol- of Doctor’s direct untary custody. Pennsylvania appellate by choosing return to to courts had “no discretion appeal by justice, appellant flee from consider an a convicted defendant forever forfeited escapes jurisdiction, appeal.”). who or absconds from the 1995, regardless ” appeals of when he returns. Commonwealth In after Doctor's direct were Jones, 22, concluded, (1989); Pennsylvania Supreme 388 564 A.2d 983 Court 082 (1993). 1098, miscarriage clearly because A.2d 1100 A of foreclosed Doctor justice only “miscarriage of occur it is demon- to demonstrate “can where

be able “departure warranting particular from that a omission or commis- justice” strated eligibility stringent requirements.” sion undermined the was so serious it PCRA’s Fiore, reliability proceeding. 445 the outcome of See Commonwealth (1995) (Hoffman, J., 1193 can result 665 A.2d Where a conviction be shown to omitted), (citations concurring) appeal de- adversary process, from a breakdown (1996). nied, A.2d 1243 Pa. rendered is unreliable. Such conviction obviously prejudicial conviction is to the de- ' exceptions limited al There are and, stand, if a miscar- fendant allowed claim lowing of a that would assertion Lawson, riage justice.” of 549 A.2d at In Commonwealth v. waived. considered J., (Papadakos, concurring).6 Lawson, 549 A.2d 519 Pa. support a alleges facts that could (1988), Supreme Court held resulting in his finding proceedings that “the raised on direct or that issues never miscarriage unfair conviction were so that a petitions are previous postconviction justice society of occurred which no civilized waived, precluding their consider deemed Szuchon, can at 1100. tolerate.” 633 A.2d postconviction petitions, ation in successive allegations and citations to evidence petitioner can a “mis demonstrate unless judge indicate the record that a entered justice, society no carriage of which civilized any against convening him verdict without Petitioner must demon can tolerate.”5 open (1) proceedings in court and without proceedings resulting in strate: resuming adversary proceed- semblance of so unfair were that a miscar his conviction ings. justice These contentions could be construed occurred no civilized riage of tolerate; giving rise to a claim a break- society can actual innocence. of serious Szuchon, adversary process. allega- 534 Pa. down in the Such Commonwealth held that collateral Jones and review of Doctor's claims overruled appellate rights reinstate because those decisions handed down discretion to were not retained J.J., during appeals. In re of his direct 540 Pa. defendant. non-discretionaiy fugitive (citing Ortega- forfeiture rule 1362-63 656 A.2d States, governed before In re JJ. would thus deem Doc- Rodriguez v. 1199, 1205-06, tor’s claims waived. 122 L.Ed.2d 581 holding that sanction be reasonable 5. Lawson addressed the issue in the con- waiver response flight there and is warranted petition brought pursuant text of a to the Post flight appel is some connection between and the Act, Hearing predecessor Conviction to the Post process). Huff, late 535, However, holding Conviction Act. Relief A.2d applies petitions brought Lawson also under Court held that Szuchon, the PCRA. See rights by denying appellate ap where the erred Pa. flight prior sentencing pellant’s justice from significant appellate process. on the had no effect courts have addressed wheth Id., 658 A.2d at 1342. showing miscarriage justice er a can over applied retroactively and In re JJ. were If provisions come the waiver the PCRA for Huff have, however, on collateral review courts petitions. They permitted initial might Doctor did allegations miscarriage determine that not waive the justice of of to override (1) right to claims considered because: have his provisions the waiver of have the PCRA and filing a notice he before of and therefore reached the claims in merits of such only See, recapture; after his petitions. was sentenced e.g., and/or successive PCRA Common (2) materially ap- Williams, escape did not affect the 442 wealth v. 660 A.2d case, denied, peals process in which and In re JJ. 618-19 674 1071 A.2d Huff require (Pa.1996). Though precise relationship that his be reinstat- be However, Pennsylvania law is “a miscarriage justice allegation ed. clear that of and the tween give unsettled, rule of which we provisions new effect, law to full retroactive PCRA’swaiver is somewhat see, applied will e.g., Ryan, Super. not be case on collater- Commonwealth v. Pa. 394 (1990) that decision was down (applying al review unless handed 575 A.2d 950-51 during appellant’s ap- an provisions alleged of direct petitioner where waiver peal.” Gillespie, miscarriage justice), of that cannot conclude (1986). Therefore, even clearly 1183 collateral review foreclosed because assuming open possibility courts would that a these cases leave give miscarriage showing justice full of overcome retroactive effect rules announced of can Huff, petition. provisions in In re JJ. and those rules would not be waiver an initial PCRA

683 true, tions, much more seri Doctor is if raise concerns entitled federal habeas entirely procedurally in a trial that do not review of his ous than defects defaulted claims. Therefore, judicial appearance pub or of a interests of econo negate the existence my we will address the district required by the Amendment. court’s hold lic trial as Sixth ing Lawson, fugitive that the (allegation forfeiture rule bars fed 549 A.2d at 110 Cf. eral habeas review of Doctor’s A timely claims. trial did not commence does dem petitioner justice); entitled to federal of miscarriage Common review onstrate Williams, procedurally only defaulted if he can wealth (1) procedural demonstrate that rule was (allegation petitioner was A.2d (2) “independent” “adequate” or not informed of the elements of the crimes to contendere, comply cause for his failure to with state pled he nolo that his violated, procedural prejudice resulting rules and rights speedy trial were and that Reed, therefrom. See Harris v. imposed guide U.S. the sentence exceeded the 255, 260-61, 109 S.Ct. discretion did not indicate a lines and abused (1989); Reynolds L.Ed.2d 308 justice). Ellings miscarriage of worth, (3d Cir.), 843 F.2d cert. de requirement The exhaustion reflects nied, 109 S.Ct. comity concerns of and federalism which re quire give this Court to state courts first appeal, On direct opportunity allegations legal to “consider fugitive found that under the forfeiture rule interference from the federal error without appellate rights. Doctor had waived his Hillery, judiciary.” at They therefore did not reach the merits of Although may at 620. exhaustion be courts, his claims. Federal as a matter of to the state courts excused where return federalism, comity and will not address habe- futile, would be we must be certain that state as claims which have been defaulted state clearly deprive review is foreclosed lest we petitioner court because the violated an “in- “opportunity an state courts of correct dependent” “adequate” procedural state errors, Toulson, any.” their own rule, unless the can demonstrate omitted). (citation at It is therefore not Harris, prejudice. cause and 489 U.S. at Pennsyl for this whether the decide 260-61, 1042; Reynolds, 109 S.Ct. at vania courts will conclude that the defects in may F.2d Doctor’s claims proceedings surrounding Doctor’s convic only considered if he can demonstrate: miscarriage tion rise to the level of a him, applied fugitive that as forfeiture justice by Pennsylvania as defined law. We independent adequate rule was not an cannot conclude that there is no chance that rule; procedural cause for the courts would find a miscar procedural prejudice resulting default and riage justice sufficient to override the therefrom. We hold that the waiver requirements permit un waiver review rule as in this case was not an inde- Accordingly, der the PCRA we conclude pendent adequate rule that a return to state court would not be and therefore we do not consider whether futile. preju- Doctor can demonstrate cause and dice.7 PROCEDURAL DEFAULT analysis Though foregoing man provides independent state rule A

dates dismissal of Doctor’s and thus adequate precluding basis for below, affirmance of the court prisoner’s review of a state habeas claims petition asserting only resubmit a his ex speaks if: the state Lundy, 520, terms; hausted claims. 455 appellate U.S. 102 in unmistakable all state S.Ct. at 1204. Should this occur the district courts to refused review the merits; again question court will be faced with the of claims on the and the state fugitive independent 7. As discussed below the instant case raises an that the forfeiture rule was beyond fugitive case, 32, issue forfeiture rule. Therefore even if the settled bounds of the adequate and in that see id. at it does Feigley v. Ful independent not resolve whether the rule is and comer, Cir.1987), (3d by reaching 833 F.2d 29 adequate applied as in this case. prejudice, implicitly the issue of cause and held 684 Jones, in this instance is consistent and its reliance on Commonwealth v.

courts’ refusal Zimmerman, 536, (1992), Neely v. Pa. 610 A.2d 439 indicate that decisions. 530 with other (3d Cir.1988) 144, 148 (citing the Court believed it lacked discretion to Wain 868 F.2d 72, 85-86, the appeal 433 97 consider of a defendant who had Sykes, U.S. S.Ct. wight v. (1977)). any 2505-06, fled at time. 2497, 53 L.Ed.2d 594 A adequate only if it is is “consistent state rule rule, applicable procedural The Pa. ly applied.” v. regularly Johnson Mis and R.App.P.1972(6), provides in which relevant 587, 1981, 578, 108 S.Ct. sissippi 486 U.S. (6)[t]o “any part party move: ... (1988); 1987, 575 see also 100 L.Ed.2d Ford generally quash continue or to because the 423-24, 411, U.S. 111 Georgia, v. 498 S.Ct. appellant fugitive,” speaks is a on its face (1991) (state 850, 857-58, 112 935 L.Ed.2d appellant only to situations where procedural “firmly rule be established fugitive presently provides guidance and no regularly followed” to bar habeas appeals filed after has review). ap While state rule should Clark, custody. returned See been 892 “evenhandedly claims,” plied all similar (the “provides at 1149 F.2d rule little or no Lovorn, v. 457 U.S. 102 Hathorn guidance arising as to dismissal of claims 2426, 2421, 72 824 L.Ed.2d state S.Ct. recapture”). after Therefore must exam in only need demonstrate that courts case ine the law to determine whether the cases,” majority applied the rule is in “vast upon Superior by rule relied Court —that regular” Dugger manner. “consistent it lacked the to consider discretion Adams, 401, 6,n. 109 v. 489 U.S. 410 by filed defendant who fled at 6, 1211, 103 1217 n. L.Ed.2d 435 “firmly regularly time —was established Ford, 423-24, applied.” 498 U.S. at 111 S.Ct. parties dispute do not The at 857-58. We must decide whether the rule peti appellate courts to review refused firmly regularly applied, was established claims on the merits. tioner’s We therefore Superior 1993 when the Court relied procedural the state examine whether on it, but rather as of the date of the waiver they relied to review of foreclose allegedly occurred when Doctor speaks unmistakable terms or merits Reynolds, in 1986.8 See 843 F.2d at 722 “firmly regularly established and followed.” (federal generally courts should determine Superior questions Court refused to consider according The default by merits of Doctor’s claims because “choos the habeas in effect at waiver law the time of waiver) justice ing approximately (citing Spencer from for six Kemp, to flee the asserted v. (11th Cir.1986) years, 1458, 1469 (en banc) forever forfeited 781 F.2d 13, Ricketts, May 680, appeal.” Lumpkin See Memorandum filed 682 (5th denied, Cir.), 957, court based 2 Appendix 198-200. The its & n. 434 cert. U.S. (1977)); Jersey, Molinaro New decision on: 396 98 S.Ct. 54 L.Ed.2d 316 see also (1970); Patterson, 90 S.Ct. 24 L.Ed.2d 586 NAACP Alabama ex rel. Jones, 449, 457-58, 1169-70, 530 Pa. 78 S.Ct. (1992); (1958) (“Novelty A.2d 439 Crad dock, (1989); requirements permitted A.2d 151 Com cannot be to thwart Lines, monwealth v. in this 609 review Court those who denied, justified decisions, A.2d allocatur Pa. upon prior 616 in reliance (1992); Pa.R.App.P.1972(6). A.2d 983 seek vindication in courts of their feder language The opinion of the rights.”). al constitutional (1992)). during We stated above that present A.2d appeals Pennsylvania appellate Doctor's direct inquiry is distinct because it focuses on the state ap courts lacked the discretion to consider the forfeiture rule when Doctor fled in peal escapes aof convicted defendant who period 1986 rather than on the of 1992 to 1993 jurisdiction regardless absconds from the custody when Doctor was returned and his (citing supra when returns. See he note Com appeals Jones, monwealth v. A.2d pending. were Jones, v. Commonwealth Pa. petition the state of the law 1986 returned to he filed a determine To appeal to Pennsylvania Supreme Superi- reinstate his which both the the we examine Supreme v. Court and the Court opinions Commonwealth Gallo denied. Court’s 309, 333 A.2d 741 way, 460 Pa. recognizing Galloway While the rationale Passaro, Commonwealth dismissing escaped pend- an defendant’s (1984). Galloway, In the defendant A.2d 346 ing appeal, the Court stated in custody during escaped from decidedly non-discretionary language: appeal to the Su his direct escape The of a convicted defendant from attorney peti preme The district Court. may properly confinement be considered a appeal prejudice. to dismiss the with tioned rejection legitimate of the means afforded Pennsylvania Supreme Court did not The challenging the defendant for his convic- argu decide the continued imprisonment. by choosing tion and Galloway generally ment until was returned fugitive, to flee and live as a a defendant custody. After he was returned to custo forfeits the to have his claim consid- dy, Pennsylvania Supreme denied Court ered. appeal. The to dismiss Gal Passaro, 476 A.2d explained loway that the rationale be Court Passaro, however, did not overrule Gallo- appeal dismissing hind an while a convicted way. We therefore do not read Passaro to upon rests “the inher defendant is eliminate the discretion conferred Gallo- any court to ent discretion of refuse hear Rather, way. any we read the absence of who, litigant by escaping, of a has the claim discretionary language in Passaro to reflect beyond jurisdiction and placed himself important distinction between the two court, hence, might control of the not be appeal upon recap- cases: the status of the judgment responsive to the of the court.” Thus, Passaro, leaving ture. while undis- Galloway, 333 A.2d at 743. The court held Galloway’s grant turbed of discretion as to that there was no basis to dismiss the defen pending appeal, whether dismiss a declined custody appeal dant’s because he was in to confer the discretion same as to whether actually argued the ease was and would when previously appeal. reinstate a dismissed subject jurisdiction to the therefore Therefore, Pennsylvania’s fugitive forfeiture responsive judgment and thus court rule after Passaro can described as follows: entered. custody if the defendant is returned to while Pennsylvania’s Galloway, After intermedi appeal pending, appellate an court has consistently recognized ate their dis appeal, the discretion to hear the but properly appeal cretion to filed hear custody defendant is returned to after the long as the criminal defendant had returned appellate dismissed lacks jurisdiction to the before the was ap- the discretion to reinstate and hear the Jones, dismissed. See Commonwealth v. (“the Jones, peal. See 564 A.2d at 986 factu- (1989) (cita Pa.Super. Galloway al distinctions between Passa- omitted); also tions see Commonwealth v. suggest ro would still the forfeiture Pa.Super. Milligan, 307 452 A.2d 1072 analysis apply Passaro would situa- Harrison, (1982); Commonwealth tions ... where the defendant was returned (1981); Pa.Super. 432 A.2d 1083 Com ap- authorities while their Albert, Pa.Super. monwealth v. 393 peals pending”). were still Borden, (1978); A.2d 991 decisions, It is clear from these which re- (1978); Pa.Super. 389 A.2d 633 Com flect the state of the law at the time of Boyd, monwealth 366 petitioner’s escape, law af- (1976); Barron, A.2d 934 degrees forded courts different 352 A.2d 84 posture of depending discretion on the Passaro, fugitive’s defendant from appeal upon a former return to custody Superi- while his direct custody. Pennsylvania law had never con- pending. or Court was fronted situation that arises in the in- flight granted the Commonwealth’s motion to stant case where had ended custody quash appeal. the defendant was had been restored before the When barred, unlikely it claims even it is the ever initiated. process was Pennsylva “firmly Id. at 988. established” state court would consider them. was not an the discretion to hear firmly princi- lacked premised nia courts This is on entrenched custody had been re after first filed ples comity. Accordingly, I not think it of do Galloway rationale a stored. Under require be futile to Doctor to return to would to hear an have discretion court would state court. by a defendant because filed such addition, yet a since Doctor has not filed custody during the be in would defendant claims, I petition asserting only exhausted do subject to of his pendency entire necessary proce it to reach the not think as a of order entered the enforcement But in the event that dural default issue. Furthermore, Superi as the result thereof. claims, exhausted it Doctor resubmits his 985-86, Jones, in 564 A.2d at or noted appear Feigley that under v. Fulcom would unclear, Pennsylvania Su until the it was (3d er, Cir.1987), fugitive 833 F.2d 29 in decision Commonwealth preme Court’s forfeiture rule would bar federal habeas re 75, 550 A.2d 1317 Luckenbaugh, 520 Pa. notes, view of Doctor’s claims. As the court analy the Passaro forfeiture petitioner review is not entitled who applied to defendant sis even' procedurally defaulted claims if the state- custody during pendeney and returned ground “independent” law is both of the mer Therefore, courts in appeal. the state of his “adequate” its of the federal claim and an rely proce “adequate” on an did not this case basis for the court’s decision. Coleman deny petitioner a review of his rule to dural Thompson, appeal on the merits. (1991). 2565, 115 L.Ed.2d 640 Waiver reasons, judgment of foregoing For by claims in state court can be overlooked affirmed. the district court will be federal courts if the can dem non-compliance onstrate “cause” for with the SCIRICA, Judge, concurring. Circuit procedural “prejudice” resulting rule and agree I that Doctor has failed to exhaust violation, alleged from the constitutional remedies and that we his state created can demonstrate that failure consider the judgment affirm the of the district should result in will a fundamental miscar petition. I dismissing Doctor’s But noted, justice. riage Feigley Id. As in I the Penn separately because believe write explicitly Pennsylva did not address whether given sylvania courts should be fugitive “indepen nia’s rule an forfeiture to decide whether the recent opportunity adequate” dent and fugitive forfeiture rule should changes mandating judgment against default the es retroactively recog to Doctor. I capee. But we could not have reached the courts have held that nize prejudice” issue of “cause and without first give law to retro a new rule of implicitly determining rule was inde effect, applied active will not be collateral pendent adequate basis for the court’s that decision was handed down review unless Consequently, appellant’s appear decision. it would during of an direct appeal. Gillespie, forfeiture rule would bar review of light But in Doctor’s exhausted claims. change Pennsylvania’s the drastic law SLOVITER, Judge, Present: Chief by escapees, regarding appeals possible it is BECKER, STAPLETON, MANSMANN, retroactivity the state courts relax the GREENBERG, SCIRICA, COWEN, Only rule in a like this one. when state case NYGAARD, ALITO, ROTH, LEWIS “clearly law state court review of foreelose[s] McKEE, O’NEILL*, Judges, Circuit claims,” [the] unexhausted is a Judge. District Bey failure to exhaust Toulson v. excused. er, (3d Cir.1993). If a SUR PETITION FOR REHEARING federal court is uncertain how a state court Nov. issue, default it resolve rehearing appel- filed should dismiss the for failure to ex haust having state remedies rather than hold the lant the above-entitled case been Jr., O’Neill, Pennsylvania, by designation, panel * The Honorable Thomas N. who sat as to Judge rehearing only. States District for the Eastern District of judges participated who submitted to the and to all the other decision of this Court judges regu- of the circuit in

available circuit service, judge and no who con-

lar active having decision asked for re-

curred majority judges

hearing, and a of the circuit regular having circuit in service not rehearing, for rehear-

voted banc,

ing by panel and the Court in

denied. AIRLINES,

In re TRANS WORLD

INCORPORATED, Debtor.

Stanley BERGER, Beverly

Berger, Appellants, AIRLINES,

TRANS WORLD

INCORPORATED, Ross, E.

Thomas Trustee. AIRLINES,

In re TRANS WORLD

INCORPORATED, Debtor. TRAVEL, INTERNATIONAL

LONDON

LTD.; Travel, Inc., Latin American

Appellants, AIRLINES,

TRANS WORLD

INCORPORATED, Ross,

Thomas E. Trustee.

Nos. 95-7322 to 95-7324. Appeals, Court of States

Third Circuit.

Argued Jan. Sept.

Decided

Case Details

Case Name: Gary Lee Doctor v. Gilbert A. Walters

Court Name: Court of Appeals for the Third Circuit

Date Published: Nov 4, 1996

Citation: 96 F.3d 675

Docket Number: 95-3484

Court Abbreviation: 3rd Cir.