Lines v. Larkins

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

3-21-2000

Lines v Larkins

Precedential or Non-Precedential:

Docket 97-2050

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Filed March 21, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-2050

LAWRENCE LINES,

Appellant

v.

DAVID LARKINS, WARDEN; THE DISTRICT ATTORNEY

OF THE COUNTY OF BUCKS; THE ATTORNEY GENERAL

OF THE STATE OF PENNSYLVANIA

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Civil No. 97-cv-01500

District Judge: Hon. Donald W. VanArtsdalen

Argued

October 7, 1998

Before: McKee, and Rendell, Circuit Judges, and

Debevoise, District Judge1

(Filed: March 21, 2000)

Elizabeth K. Ainslie, Esq. (Argued)

Schnader, Harrison, Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia, PA 19103

Attorney for Appellant

_________________________________________________________________

1. Honorable Dickinson R. Debevoise, United States District Court for the

District of New Jersey, sitting by designation.

Stephen B. Harris, Esq. (Argued)

Heather A. Castellino, Esq.

Office of District Attorney

55 East Court Street

Bucks County Courthouse

Doylestown, PA 18901

Attorneys for Appellees

OPINION OF THE COURT

McKEE, Circuit Judge.

We are asked to review the District Court's dismissal of

Lawrence Lines' petition for a writ of habeas corpus under

28 U.S.C. S 2254. The District Court held that Lines had

not exhausted his state court remedies, and dismissed the

petition without prejudice based upon that court's

conclusion that Lines could return to state court to

properly present his claims there. We agree that Lines has

not exhausted his state court remedies. However, we

conclude that returning to state court would be futile and

that his claims are all procedurally defaulted. We also

conclude that Lines can not establish cause and prejudice

for the default and that failing to reach the merits of his

petition would not result in a fundamental miscarriage of

justice. We therefore hold that his petition must be

dismissed with prejudice. Accordingly, we will affirm, but

modify, the order of the District Court dismissing Lines

petition for relief under 28 U.S.C. S 2254.

I. Procedural and Factual Background

The procedural history of this appeal illustrates just how

serpentine the path to federal habeas review has become

and the unexploded mines awaiting even seasoned

practitioners who attempt to navigate under 28 U.S.C.

S 2254.2

_________________________________________________________________

2. This is not to suggest that anyone other than Lines himself is

responsible for much of the complexity here. It is his own conduct that

has prevented him from getting the review he has been seeking in the

state and federal courts. As will be seen from our discussion, his flight

during the course of his jury trial tossed a procedural monkey wrench

into subsequent proceedings in both state and federal court.

2

Lines was tried for murder in state court in 1986.

However, he escaped from custody on October 10, 1986,

while the jury was deliberating. The jury convicted Lines in

absentia, and his trial attorney filed post-verdict motions on

his behalf, and in his absence. Lines was apprehended on

December 21, 1986, while those post-verdict motions were

pending. Thereafter, he retained new counsel whofiled

additional post-verdict motions on his behalf. The

Commonwealth moved to quash the post-verdict motions,

arguing that Lines was no longer entitled to seek post-

verdict relief because he had absconded during his trial.

However, the trial court never ruled on the

Commonwealth's motion. Instead, the court held numerous

evidentiary hearings on the merits of Lines' claims and, by

order dated May 23, 1991, the trial court denied the post-

verdict motions on the merits. On July 19, 1991, Lines was

sentenced to life imprisonment on the murder conviction.

Following sentencing, Lines filed a timely direct appeal to

the Pennsylvania Superior Court in which he raised the

following questions:

1. Did the attorney for the Commonwealth, in his

closing presentation, continuously express his

personal opinions of the evidence so as to deprive

the appellant of a fair trial?

2. Did the Commonwealth commit prosecutorial

misconduct in failing to disclose exculpatory

evidence concerning its star witness, failing to

comply with discovery rules, and failing to correct

perjured testimony of the star witness, thus

requiring a new trial?

3. Was the Defendant-Appellant denied effective

assistance of counsel when defense counsel

allowed the admittance of hearsay statements

without objection, failed to properly prepare for

trial and conduct an independent defense

investigation, failed to utilize character witness

testimony, and failed to develop and present a

coherent and cogent theory of defense?

Brief of Appellant at 2.3 The Commonwealth responded by

_________________________________________________________________

3. Inasmuch as we must identify the issues Lines has raised in state

court with precision in order to properly resolve this appeal, we set

forth

3

asking the Superior Court to dismiss Lines' appeal based

upon his flight. The Commonwealth argued that the trial

court had erred in not quashing Lines' post-verdict motions

because he had been a fugitive when his post-trial motions

were filed.

The Superior Court agreed with the Commonwealth, and

held that the trial court had erred in failing to quash Lines'

post-verdict motions. The court stated: "Pennsylvania law

indicates that a trial court is without discretion and,

therefore, must dismiss a defendant's post-trial motions as

long as a defendant is a fugitive." Commonwealth v. Lines,

415 Pa. Super. 438, 440, 609 A.2d 832, 833, allocatur

denied, 532 Pa. 662, 618 A.2d 983 (1992). The court held

that "appellant has forever forfeited his right to appeal by

electing to become a fugitive after post-trial procedures

have begun." Id., 415 Pa. Super. at 443, 609 A.2d at 834

(internal quotation marks omitted). The court's holding was

partially based upon a then-recent decision wherein the

Pennsylvania Supreme Court had stated:

A defendant's voluntary escape acts as a per se

forfeiture of his rights of appeal, where the defendant

is a fugitive at any time after post-trial proceedings

commence. Such a forfeiture is irrevocable and

continues despite the defendant's capture or voluntary

return to custody. Thus, by choosing to flee from

justice, appellant has forever forfeited his right to

appeal.

Commonwealth v. Jones, 530 Pa. 536, 541, 610 A.2d 439,

441 (1992). In its opinion, the court listed Lines'

substantive claims but did not address them.4

_________________________________________________________________

verbatim the "Questions Presented" section of the brief he filed with the

Superior Court on direct appeal. See Brown v. Cuyler, 158-160 (3d Cir.

1982) (we scrutinize the relevant pleadings and briefs to determine if a

petitioner fairly presented his or her claim in state court).

4. Judge Johnson filed a dissenting opinion that foreshadowed a change

the Pennsylvania Supreme Court would subsequently make in the

fugitive forfeiture rule. He argued that the majority ought not to have

applied a per se forfeiture rule under the circumstances surrounding

Lines' appeal. Judge Johnson stated:

4

Thereafter, Lines filed a timely Petition for Allowance of

Appeal to the Pennsylvania Supreme Court. In his Petition,

Lines challenged only the Superior Court's application of

the fugitive forfeiture rule; he did not include the

substantive claims he had raised in his brief to the

Superior Court. On October 28, 1992, the Pennsylvania

Supreme Court denied his Petition.

On March 31, 1993, Lines filed a petition for collateral

relief under Pennsylvania's Post Conviction Relief Act, 42

Pa. C.S. SS 9501 et seq. He raised the following issues in

that petition:

1. Whether appellate counsel was ineffective for failing

to submit to the appellate courts that their

retroactive application of Commonwealth v. Jones

to the appellant's case would be a violation of the

appellant's due process rights.

2. Whether appellate counsel was ineffective for failing

to submit to the appellate courts that a retroactive

application of Commonwealth v. Jones violates the

constitutional prohibition against ex post facto

laws.

3. Whether appellate counsel was ineffective for failing

to submit to the appellate courts that a five year

delay in the appellant's sentencing on the above-

captioned matter violated his Sixth Amendment

right to a speedy trial.

_________________________________________________________________

I am unable to glean any support for the proposition that an

appellate court cannot review an appeal where the defendant was a

fugitive prior to appeal where the trial court did not dismiss

post-

trial motions. . . . The cases relied on by the Majority fail to

support

either that a trial court must dismiss a defendant's post-trial

motions if the defendant becomes a fugitive, or that this court has

no power to hear an appeal from a judgment of sentence rendered

against a defendant who was a fugitive prior to appeal where the

trial court has not dismissed his post-trial motions.

Commonwealth v. Lines, 415 Pa. Super. at 447-448, 609 A.2d at 836-

837 (Johnson, J., dissenting). Despite his disagreement with the

majority, Judge Johnson would still have denied Lines relief, because he

concluded Lines' claims were meritless.

5

4. Whether appellate counsel was ineffective for failing

to raise whether trial counsel was ineffective when

he failed to object to the trial court's jury

instruction regarding accomplice testimony.

5. Whether the appellant is entitled to a new trial on

the basis of after-discovered evidence.

The PCRA court began its discussion of Lines' petition by

declaring: "it is the opinion of this court that this entire

petition is improper." The court's view of the impropriety of

Lines' PCRA petition was based, in part, upon the court's

belief that "appellant is using this petition in an attempt to

attack a Superior Court decision in which that court

refused to adjudicate appellant's claims on the basis that

appellant waived his appeal right because appellant

absconded." The court concluded: "This collateral attack is

impermissible." Opinion at 3. Nevertheless, the court

assumed arguendo that Lines could "maintain such an

appeal," id., and denied the petition on the merits without

a hearing.

Lines appealed to the Pennsylvania Superior Court,

which affirmed the denial on the merits of the PCRA

petition as to all but one of the issues Lines had raised. The

court found that Lines' challenge to appellate counsel's

ineffectiveness for failing to raise a claim concerning trial

counsel's ineffectiveness had been waived because Lines

absconded. The court stated:

Since appellant's voluntary escape resulted not in a

waiver of those issues addressed in the quashed

appeal, but a complete forfeiture of his right to appeal,

appellate counsel was effectively barred from raising

the issue of ineffectiveness of trial counsel and, thus,

cannot be deemed ineffective for having failed to

include certain issues in the direct appeal.

Opinion at 3-4. Thereafter, the Pennsylvania Supreme

Court denied Lines' Petition for Allowance of Appeal from

the Superior Court's decision.

On February 28, 1997, Lines filed the instant habeas

corpus petition under 28 U.S.C. S 2254, raising the

following claims:

6

1. Lines' Due Process Rights were violated (1) when

the prosecutor refused, despite demand, to disclose

that John Gabriele had been immunized and (2)

when the prosecutor permitted John Gabriele to

perjure himself throughout his assertions of non-

involvement in drug activity.

2. Lines was deprived of his Sixth Amendment right

to the assistance of competent counsel at his trial

and his right to confront the witnesses against

him.

3. Lines' counsel's performance at trial fell below the

standard of competence required and deprived

Lines of his Sixth Amendment rights because:

(a) counsel failed to ask for severance of counts;

(b) counsel failed to object to hearsay te stimony;

(c) counsel failed to adopt any theory of defense;

and

(d) counsel failed to call character witne sses.

4. The prosecutor's closing arguments constituted a

violation of due process by offering his personal

opinions concerning certain testimony.

The Commonwealth asked the District Court to dismiss

the petition based upon Lines' purported failure to exhaust

remedies in state court. The Commonwealth argued that

Lines was precluded from obtaining any relief under 28

U.S.C. S 2254 because he had not presented any of his

federal habeas claims to the Pennsylvania Supreme Court.

The Commonwealth relied in part upon Fiegley v. Fulcomer,

833 F.2d 29 (3d Cir. 1987), to argue that Lines was

procedurally barred from federal habeas review because the

Superior Court had quashed his appeal, and he could not

establish the cause and prejudice that was a condition

precedent to obtaining federal habeas relief on his defaulted

claims.

The District Court referred Lines' habeas petition to a

Magistrate Judge who filed a Report and Recommendation

recommending dismissal of the habeas petition. The

Magistrate Judge reasoned that the Superior Court's

7

application of Pennsylvania's fugitive forfeiture rule did not

excuse Lines from presenting his substantive claims to the

Pennsylvania Supreme Court. Inasmuch as Lines could not

demonstrate cause and prejudice for his failure to present

the substance of his claims to the Supreme Court or that

a fundamental miscarriage of justice would result from not

reviewing his claims, the Magistrate Judge concluded that

Lines was not entitled to an adjudication on the merits of

his habeas petition.

Lines objected to the Report and Recommendation, and

argued that the Magistrate Judge's conclusion was

inconsistent with our holding in Doctor v. Walters, 96 F.3d

675 (3rd Cir. 1996). The District Court disagreed with both

the Magistrate Judge and Lines. The District Court

concluded that:

it is not entirely clear that the Pennsylvania Supreme

Court would not have heard Petitioner's claims, nor

that Petitioner was procedurally barred from appealing

his claims to the state supreme court. Because [he] has

not appealed the issues in the instant petition to the

Pennsylvania Supreme Court, the highest state court

has not yet had the opportunity to review the merits of

the claims Petitioner now raises, and therefore, the

Pennsylvania Supreme Court has not been given the

chance to correct any alleged error or mistake of the

lower state court.

Opinion at 8. Under the District Court's interpretation of

Doctor, Pennsylvania's fugitive forfeiture rule was not an

independent and adequate state rule barring federal habeas

review "because it was not firmly established at the time of

the alleged waiver that a Pennsylvania court lacked the

discretion to hear an appeal first filed after Petitioner had

been returned to custody." Id. at 8-9. The court reasoned

that "it is possible that the state supreme court would

review Petitioner's claims, [and therefore] I must dismiss

[the] petition . . . for Petitioner's failure to exhaust his state

court remedies." Id. at 12.

Lines filed a motion for reconsideration arguing that the

District Court had misconstrued Doctor. Lines asserted that

Doctor required the court to excuse exhaustion and proceed

8

to the merits of the petition, rather than dismiss the

petition for failure to exhaust. According to Lines,

exhaustion is excused and the District Court should

address his petition on the merits because Doctor held that

the fugitive forfeiture rule is not an "independent and

adequate" state rule that bars federal habeas relief. Reply at

3-4. On appeal, Lines suggests that any failure to present

the merits of his appeal to the Supreme Court must be

excused. Lines argues that the Pennsylvania Supreme

Court:

would not have considered [his underlying claims] until

and unless the [Superior C]ourt had considered them

and ruled on them. If the Supreme Court had felt,

however, that Lines was entitled to have his

constitutional issues heard by the Pennsylvania

Supreme Court, it could and would have remanded to

the Superior Court for consideration in the first

instance.

(Brief at 8.).5

Lines filed a timely notice of appeal from the District

Court's denial of his habeas petition, and we granted his

request for a certificate of appealability to determine

whether the District Court correctly dismissed the petition

for lack of exhaustion.6 On appeal, Lines repeats his

argument that the District Court should have addressed

the merits of his petition because exhaustion must be

excused under the circumstances here. Lines contends that

since he has already unsuccessfully filed one PCRA petition

and a direct appeal, he has no means to exhaust his claims

in state court, and the District Court should therefore hear

his claims on the merits.

_________________________________________________________________

5. Lines cites Wiegand v. Wiegand, 461 Pa 482, 337 A.2d 256 (1975),

and Paull v. Paull, 384 Pa. 2, 119 A.2d 93 (1958). However, these cases

merely stand for the proposition -- irrelevant here -- that courts should

not decide sua sponte issues not raised, briefed and argued by the

parties.

6. We have jurisdiction under 28 U.S.C. SS 1291 and 2253; our review is

plenary, Doctor v. Walters, 96 F.3d at 678.

9

II. DISCUSSION

A. General Principles

All claims that a petitioner in state custody attempts to

present to a federal court for habeas corpus review must

have been fairly presented to each level of the state courts,

28 U.S.C. S 2254(b); O'Sullivan v. Boerckel, 119 S. Ct. 1728,

1734 (1999) ("we ask not only whether a prisoner has

exhausted his state remedies, but also whether he has

properly exhausted those remedies, i.e., whether he has

fairly presented his claims to the state courts,"7); Doctor, 96

F.3d at 678. Thus, except as we discuss below, and except

for petitions which can be denied on the merits, 8 federal

courts refrain from addressing the merits of any claim

raised by a habeas petitioner that was not properly

exhausted in state court, Coleman v. Thompson , 501 U.S.

722, 750 (1991). "The exhaustion requirement ensures that

state courts have the first opportunity to review convictions

and preserves the role of state courts in protecting federally

guaranteed rights." Caswell v. Ryan, 953 F.2d 853, 856 (3d

Cir. 1992). The burden of establishing that such claims

were fairly presented falls upon the petitioner. Lambert v.

Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). Federal courts

will dismiss without prejudice claims that have not been

properly presented to the state courts, allowing petitioners

to exhaust their claims.

Petitioners who have not fairly presented their claims to

the highest state court have failed to exhaust those claims.

_________________________________________________________________

7. In Boerckel, the Court held that a petitioner had to present claims

forming the basis of his federal habeas petition to the Illinois Supreme

Court even though Illinois (like Pennsylvania) had only a discretionary

review of intermediate appellate court decisions and was apparently

rather selective about the cases it actually reviewed. There, the

petitioner

had unsuccessfully attempted to argue a miscarriage of justice under

Schlup v. Delo, 513 U.S. 298, (1995), by presenting evidence that he

claimed showed that two others were actually responsible for the crime

he had been convicted of. 119 S.Ct. at 1731.

8. Pursuant to 28 U.S.C. S 2254(b)(2), a habeas corpus petition "may be

denied on the merits, notwithstanding the failure of the applicant to

exhaust" available state remedies.

10

O'Sullivan v. Boerckel. If, however, state procedural rules

bar a petitioner from seeking further relief in state courts,

"the exhaustion requirement is satisfied because there is

`an absence of available State corrective process.' 28 U.S.C.

S 2254(b). McCandless v. Vaughn, 172 F.3d 255, 260 (3d

Cir. 1999). Even so, this does not mean that a federal court

may, without more, proceed to the merits. Rather, claims

deemed exhausted because of a state procedural bar are

procedurally defaulted, and federal courts may not consider

their merits unless the petitioner "establishes`cause and

prejudice' or a `fundamental miscarriage of justice' to

excuse the default." Id. See also Coleman, 501 U.S. at 731.9

B. General Principles Applied To Lines

We conclude that Lines did not fairly present any of his

claims to the Pennsylvania Supreme Court. Although we

agree with Lines that it would now be futile for him to

return to state court and attempt to exhaust his claims, we

do not agree with him that a federal court may therefore

address his claims on the merits. Rather, Lines' claims are

procedurally defaulted because he is barred by state law

from seeking further review of his claims in state court.

Since Lines can not demonstrate cause and prejudice for

the default, and since refraining from addressing the merits

of his claims will not result in a fundamental miscarriage of

justice, his petition should have been dismissed with

prejudice. Although Judge Debevoise concludes in his

_________________________________________________________________

9. The considerable confusion swirling around habeas review of state

convictions is exacerbated by the interrelationship of procedural default

and exhaustion. See Coleman v. Thompson, 501 U.S. at 732 ("A habeas

petitioner who has defaulted his federal claims in state court meets the

technical requirements for exhaustion; there are no state remedies

`available' to him"); McCandless, 172 F.3d at 263 ("because McCandless

is procedurally barred from asserting these claims in state court, his

claims are considered exhausted due to procedural default"); Grey v.

Hoke, 933 F.2d 117, 120-121 (2d Cir. 1991) (because petitioner's claims

would be procedurally barred by state law, no purpose would be served

by making him return to state court; thus, "we hold that petitioner no

longer has `remedies available' . . . and that he has met the statutory

exhaustion requirements for presenting a habeas petition to the federal

courts").

11

dissent that our holding in Doctor requires that we excuse

Lines' default, we conclude that Doctor is inapposite and

does not control our analysis here.

C. Lines' Direct Appeal

As noted above, Lines raised the following substantive

issues in his direct appeal to the Pennsylvania Superior

Court:

1. Did the attorney for the Commonwealth, in his

closing presentation, continuously express his

personal opinions of the evidence so as to deprive

the appellant of a fair trial?

2. Did the Commonwealth commit prosecutorial

misconduct in failing to disclose exculpatory

evidence concerning its star witness, failing to

comply with discovery rules, and failing to correct

perjured testimony of the star witness, thus

requiring a new trial?

3. Was the Defendant-Appellant denied effective

assistance of counsel when defense counsel

allowed the admittance of hearsay statements

without objection, failed to properly prepare for

trial and conduct an independent defense

investigation, failed to utilize character witness

testimony, and failed to develop and present a

coherent and cogent theory of defense?

Appellant's Brief to the Superior Court at 2. After the

Superior Court dismissed Lines' appeal pursuant to

Pennsylvania's fugitive forfeiture rule, Lines filed a Petition

for Allowance of Appeal to the Pennsylvania Supreme Court

in which he challenged only the Superior Court's

application of the forfeiture rule. His Petition for Allowance

of Appeal stated the following two grounds for relief under

the heading, "QUESTIONS PRESENTED FOR REVIEW":

1. Did the trial court have the discretion to hear the

post-trial motions of a defendant who was briefly

absent during the pendency of post-trial motions

but who was present for all the hearings on the

post-trial motions?

12

2. Is a defendant who was a fugitive for a brief time

during the pendency of his post-trial motions but

present throughout all post-trial hearings and the

appeal process, forever barred from appellate

review?

In the section of the Petition captioned: "CONCISE

STATEMENT OF THE CASE," Lines outlined the

circumstances of his flight during jury deliberations, his

subsequent apprehension, the Commonwealth's Motion to

Quash based upon his fugitive status, and the trial court's

decision on the merits of his post-verdict claims. In doing

so, he stated that he had "asked the [trial] Court to review"

the three substantive grounds set forth above, and he

reiterated each of those claims.10 However, in the seven and

one-half pages in which he set forth his "CONCISE

STATEMENT OF REASONS RELIED UPON FOR

ALLOWANCE OF APPEAL," Lines presented only his

challenge to the Superior Court's application of the fugitive

forfeiture rule. He did not set forth any of the substantive

claims he had relied upon in his brief to the Superior

Court, nor did he discuss his underlying claims at any

point in his Petition for Allowance of Appeal.11

Rule 1115(a) of the Pennsylvania Rules of Appellate

Procedure12 prescribes the proper method for presenting an

issue to the Pennsylvania Supreme Court. It states that a

Petition for Allowance of Appeal must contain, inter alia:

(3) The questions presented for review. . . . The

statement of questions presented will be deemed to

include every subsidiary question fairly comprised

therein. Only the questions set forth in the opinion, or

fairly comprised therein, will ordinarily be considered

by the court in the event an appeal is allowed. . . .

(5) A concise statement of the reasons relied on for

allowance of an appeal.

_________________________________________________________________

10. Petition for Allowance of Appeal at 3-4.

11. See Petition for Allowance of Appeal at 6-13.

12. The effective date of this version of Rule 1115, which is still

current,

was June 2, 1979.

13

(emphasis added).13 Rule 1115(c) provides:

All contentions in support of a petition for allowance of

appeal shall be set forth in the body of the petition as

provided by Paragraph (a)(5) of this rule. Neither the

briefs below nor any separate brief in support of a

petition for allowance of appeal will be received, and

the Prothonotary of the Supreme Court will refuse to

file any petition for allowance of appeal to which is

annexed or appended any brief below or supporting

brief.

Finally, Rule 1115(d) provides as follows:

The failure of a petitioner to present with accuracy,

brevity, and clearness whatever is essential to a ready

and adequate understanding of the points requiring

consideration will be a sufficient reason for denying the

petition.

The Pennsylvania Supreme Court strictly adheres to the

letter of these rules and will not address claims that are not

properly asserted in a Petition for Allowance of Appeal.

Commonwealth v. Rush, 522 Pa. 379, 386-387, 562 A.2d

285, 288 (1989), and cases cited therein. The Court has

also emphasized that "all claims appellant wishes to raise

must be set out in his brief and not merely incorporated by

reference." Commonwealth v. Edmiston, 535 Pa. 210, 238

n.3, 634 A.2d 1078, 1092 n.3 (1993). See also Rule

2116(a).

As noted above, Lines challenged only the Superior

Court's application of the fugitive forfeiture rule in the

appropriate section of his Petition for Allowance of Appeal

to the Pennsylvania Supreme Court. The trial court's

opinion denying Lines' post-trial motions (which include the

_________________________________________________________________

13. We emphasize "ordinarily" because the wording of Rule 1115(a)

clearly suggests that, in an appropriate case, an appellant may include

issues other than those relied upon by the Superior Court in the

"CONCISE STATEMENT OF REASONS RELIED UPON FOR ALLOWANCE

OF APPEAL" portion of a Petition for Discretionary Review to

Pennsylvania's Supreme Court. Therefore, we conclude that Lines had an

opportunity to include his substantive claims in his Petition for

Allowance of Review under the unique circumstances of his case.

14

questions raised in the Superior Court) was appended to

the petition, along with Superior Court's opinion. In

addition, Lines' "Statement of the Case" in his Petition for

Allowance of Appeal listed the questions raised in the

Superior Court. However, Lines did not attempt to

incorporate the issues discussed by the trial court by

reference or otherwise, and the trial court's opinion does

not fully state the substance of Lines' legal argument.

Furthermore, it is clear that the Pennsylvania Supreme

Court would not have addressed Lines' substantive claims

if he had merely attempted to incorporate them by

reference. See Edmiston, 535 Pa. at 238 n.3 ("Appellant also

`incorporates by reference' claims in his post-trial motions

as though set forth in his brief at length and requests this

court to consider them in terms of ineffectiveness of trial

counsel. We refuse to do so in that all claims appellant

wishes us to consider must be set out in his brief and not

merely incorporated by reference").

We therefore, conclude that Lines did not "fairly present"

to the Pennsylvania Supreme Court any of the claims he

raised on direct appeal.

D. Claims Not Raised on Direct Appeal

Lines concedes that his severance claim was not raised

on direct appeal; nor was it presented in his PCRA petition.

Lines also presents a Confrontation Clause claim in his

habeas petition. Although this claim was not expressly

raised on direct appeal to the Superior Court, Lines argues

that it is subsumed within the hearsay argument which he

presented to the Superior Court.14 However, even if Lines'

hearsay argument sufficiently presented his Confrontation

Clause claim, the hearsay argument, like the rest of his

claims on direct appeal, was never fairly presented to the

Pennsylvania Supreme Court.

In sum, not one of Lines' claims was fairly presented to

_________________________________________________________________

14. The Confrontation Clause is made applicable to the states through

the Fourteenth Amendment and provides: "In all criminal prosecutions,

the accused shall enjoy the right . . . to be confronted with the

witnesses

against him." U.S. Const. amend. VI.

15

the Pennsylvania Supreme Court. As a result, he did not

exhaust any of his claims. O'Sullivan v. Boerckel, 119 S.Ct.

at 1733.

III. Futility and Procedural Default

Pursuant to 28 U.S.C. S 2254(b)(1), exhaustion is excused

if a return to state court would be futile because of "an

absence of available State corrective process[,] or ...

circumstances exist that render such process ineffective to

protect the rights of the applicant." "Futility" exists where:

"a state's highest court has ruled unfavorably on a claim

involving facts and issues materially identical to those

undergirding a federal habeas petition and there is no

plausible reason to believe that a replay will persuade the

court to reverse its field," Allen v. Attorney General of

Maine, 80 F.3d 569, 573 (1st Cir. 1996); where the state

provides no means of seeking the relief sought, Wallace v.

Cody, 951 F.2d 1170, 1172 (10th Cir. 1991), Dawan v.

Lockhart, 980 F.2d 470, 475 (8th Cir. 1992); or where the

state courts have failed to alleviate obstacles to state review

presented by circumstances such as the petitioner's pro se

status, poor handwriting and illiteracy, Hollis v. Davis, 941

F.2d 1471, 1473-1475, 1479 (11th Cir. 1991), cert. denied,

503 S.Ct. 938 (1992).

If an appropriate remedy does not exist or its

utilization is frustrated by the state system. . .[t]he

deference accorded the state judicial process must give

way to the primary role of the federal courts to redress

constitutional deprivations. . . . If it appears that the

prisoner's rights have become an "empty shell" or that

the state process is a "procedural morass" offering no

hope of relief, then the federal courts may excuse the

prisoner from exhausting state remedies and may

directly consider the prisoner's constitutional claims.

Hankins v. Fulcomer, 941 F.2d 246, 249-250 (3d Cir. 1991).

Accordingly, we have held that exhaustion is not required

if there is inordinate delay in state procedures, id. at 250,

or if state officials have obstructed the petitioner's attempts

to obtain state remedies, Mayberry v. Petsock , 821 F.2d 179

(3d Cir.), cert. denied, 484 U.S. 946 (1987).

16

As we noted in Doctor, "futility" is also established where

"exhaustion is not possible because the state court would

refuse on procedural grounds to hear the merits of the

claims." Doctor, 96 F.3d at 681; Lambert v. Blackwell, 134

F.3d 506, 518-519 (3d Cir. 1997). Lines' assertion of futility

here is based upon the unavailability of further state

process. We do not excuse exhaustion in this context

unless state law clearly forecloses state court review of

claims which have not previously been presented to a state

court. Toulson v. Beyer, 987 F.2d 984, 988-989 (3d Cir.

1993).

If the federal court is uncertain how a state court would

resolve a procedural default issue, it should dismiss

the petition for failure to exhaust state remedies even

if it is unlikely that the state court would consider the

merits to ensure that, in the interests of comity and

federalism, state courts are given every opportunity to

address claims arising from state proceedings.

Doctor, 96 F.3d at 681 (emphasis added), see also Lambert,

134 F.3d at 516. The fact that it is merely unlikely that

further state process is available is therefore insufficient to

establish futility:

[I]f we permitted such a prediction to constitute the

type of futility which would allow a federal court to

excuse exhaustion, we would undermine the

exhaustion doctrine. Although exhaustion is often

cumbersome, and may appear to require duplicative

expenditure of judicial resources on claims that

frequently have no merit, the doctrine is premised on

firmly entrenched principles of comity. We are not free

to disregard those principles for the sake of expediency

or occasional efficiency.

Gibson v. Scheidemantel, 805 F.2d 135, 141 (3d Cir. 1986).

See also Banks v. Horn, 126 F.3d 206, 213 (3d Cir. 1997)

(enactment of the Antiterrorism and Effective Death Penalty

Act "which overall is intended to reduce federal intrusion

into state criminal proceedings, reenforces" that federal

courts ought to be reluctant to conclude that resort to state

courts would be futile.). Thus, "[i]n questionable cases it is

better that the state courts make the determination of

17

whether a claim is procedurally barred." Id . Accordingly, we

must determine if we can conclude with certainty that the

courts of Pennsylvania would no longer entertain Lines'

substantive claims for relief.

Lines filed his Petition for Allowance of Appeal more than

seven years ago. We think it is obvious that he could not

successfully amend a petition that has now been denied for

seven years and include within it claims that he could have

included when he first filed the petition.15 Thus, under

Pennsylvania law, the only avenue that may be available to

Lines is a second petition under the PCRA. Thus, we turn

to the provisions of the PCRA to see if Lines canfile a

second collateral attack in the state courts.16

_________________________________________________________________

15. See Caswell, 953 F.2d 853, 861 (3d Cir. 1992).

16. Pennsylvania has recently modified the fugitive forfeiture rule, and

escape no longer results in an automatic forfeiture of one's right to

appeal a conviction, or to file a petition under the PCRA. See In re.

J.J.,

540 Pa. 274, 656 A.2d 1355, 1362-1363 (1995). However, in

Commonwealth v. Huff, 540 Pa. 535, 658 A.2d 1340 (1995), the

Pennsylvania Supreme Court limited the retroactive application of new

rules of law to cases pending at the time the new rule is announced.

Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983);

Commonwealth v. Selby, 547 Pa. 31, 688 A.2d 698, 700 (1997). The

Court has clearly stated that new interpretations of law are "not to be

interpreted to mean that once a decision has been made at the final

stage of appeal, . . . that decision is subject to review, forevermore,

should the law be changed." Commonwealth v. Ahearn, 357 Pa. Super.

404, 407, 516 A.2d 45, 46 (1986). Lines' appeal became final three years

before J.J. and Huff were decided, and Lines can not now obtain the

benefit of those decisions in the courts of Pennsylvania. Moreover, in

Commonwealth v. Deemer, 550 Pa. 290 (1997), the Supreme Court held

that fugitives stand in the same position as appellants who have not

absconded. Thus,

a fugitive who has returned to the jurisdiction of the court should

be allowed to exercise his post-trial rights in the same manner he

would have done had he not become a fugitive. . . . In short, a

fugitive who returns to court should be allowed to take the system

of

criminal justice as he finds it upon his return.

550 Pa. at 295-6 (emphasis added). Thus, the Pennsylvania Supreme

Court would not give Lines the benefit of the change in the law even if

Lines could somehow once again challenge the Superior Court's

application of the fugitive forfeiture doctrine to him.

18

42 Pa. C.S.A. S 9545(b)(1) limits the availability of PCRA

relief. It states:

Any petition under this subchapter, including a second

or subsequent petition, shall be filed within one year of

the date the judgment becomes final, unless the

petition alleges and the petitioner proves that:

(i) the failure to raise the claim previously was the

result of interference by government officials with the

presentation of the claim . . . .

(ii) the facts upon which the claim is predicated were

unknown to the petitioner and could not have been

ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that

was recognized by the Supreme Court of the United

States or the Supreme Court of Pennsylvania after

the time period provided in this section and has been

held by that court to apply retroactively.

Under section 9545(b)(3), a prior petition becomesfinal

for PCRA purposes "at the conclusion of direct review,

including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or

at the expiration of time for seeking the review."

Commonwealth v. Banks, ___ Pa. ___, ___, 726 A.2d 374,

375 (1999). Under Banks, it is now clear that the one year

limitation applies to all PCRA petitions including a second

petition, no matter when the first was filed. 17

_________________________________________________________________

17. In Banks, the Pennsylvania Supreme Court held that the time

restrictions for seeking relief under Pennsylvania's Post Conviction

Relief

Act are jurisdictional. Prior to Banks there was some doubt as to the

proper scope and application of the one year limitations period under the

amended PCRA. In Commonwealth v. Thomas, ___ A.2d ___, 1998 WL

648515 (Pa. Super. September 16, 1998), the Superior Court expressly

rejected two possible interpretations of this period of limitations: that

a

second or subsequent PCRA petition is timely if thefirst PCRA petition

was filed by January 16, 1997, one year after the effective date of the

1995 amendments; and that all second or subsequent PCRA petitions

are timely so long as the first PCRA petition wasfiled either one year

before or one year after the effective date of the 1995 amendments. The

court stated instead, "we hold that it was the intention of the

legislature

19

Clearly, more than a year has passed since Lines'

judgment of conviction became final18 and none of the

aforementioned exceptions to the limitations period applies

to Lines' claims. He does not allege that improper

governmental interference or previously unknown facts

prevented him from asserting them in state court in a

timely manner, nor does he base his claims upon the

assertion of a new constitutional right.

Moreover, 42 Pa. C.S.A. S 9543(a)(3) provides that claims

raised in a PCRA petition must not have been "previously

litigated or waived." Section 9544 defines those terms as

follows:

(a) Previous litigation. -- For purpose s of this

subchapter, an issue has been previously litigated if:

. . .

(2) the highest appellate court in which the

petitioner could have had review as a matter of right

has ruled on the merits of the issue; or

(3) it has been raised and decided in a proceeding

collaterally attacking the conviction or sentence.

(b) Issues waived. -- For purposes of th is subchapter,

an issue is waived if the petitioner could have raised it

_________________________________________________________________

to permit an otherwise untimely first PCRA petition to be filed within one

year following the effective date of the 1995 PCRA amendments, but that

exception was not intended to apply to subsequent petitions regardless

of when a first petition was filed." Id . at *3.

Moreover, the Pennsylvania Supreme Court has now clearly stated that

the PCRA is the only method of seeking review of a conviction after direct

appeal, and that common law writs that were previously available under

state law have been subsumed within the PCRA. See Commonwealth v

Ahlborn, 548 Pa. 544, 549 ("The PCRA specifies that it is the sole means

of obtaining collateral relief and that it supersedes common law

remedies.")

18. Since Lines apparently did not seek certiorari to the United States

Supreme Court, the judgment against him became final ninety days after

October 28, 1992, the date on which the Pennsylvania Supreme Court

denied Lines' petition for allowance of appeal. See Commonwealth v.

Perry, 716 A.2d 1259, 1261 (Pa. Super. 1998).

20

but failed to do so before trial, at trial, during unitary

review, on appeal or in a prior state postconviction

proceeding.

When Lines filed his first PCRA petition he was

represented by counsel other than trial counsel. Therefore,

he could have raised the issue of trial counsel's

ineffectiveness in failing to move for a severance in his first

PCRA petition. See Commonwealth v. Griffin, 537 Pa. 447,

454 (1994) (a claim of ineffectiveness of counsel under the

PCRA must be raised at the earliest stage in the

proceedings after petitioner is no longer represented by

allegedly ineffective counsel). Under Pennsylvania law Lines

could attempt to challenge the stewardship of PCRA

counsel even though he is not guaranteed the right to

counsel to collaterally attack his conviction under the

United States Constitution. See Commonwealth v. Albrecht,

554 Pa. 31, 43 (1999) ("we have never found our power of

review, and if necessary, remedy deficiencies of counsel at

the post-conviction stage circumscribed by the parameters

of the Sixth Amendment."). However, the only vehicle for

now doing so is a second P.C.R.A. petition. As we noted

above, the period for filing such a petition has long since

run, and the courts of Pennsylvania therefore no longer

have jurisdiction to entertain a successive P.C.R.A. petition.

Banks, 726 A.2d at 376 ("the issue . . . is one of

jurisdiction. . ."). Accordingly, we conclude that it would be

futile for Lines to return to state court in an effort to

attempt to bring a second PCRA proceeding raising the

unexhausted claims he has included in his federal habeas

petition.

Thus, although "federal courts should be most cautious

before reaching a conclusion dependent upon an intricate

analysis of state law that a claim is procedurally barred,"

Banks v. Horn, 126 F.3d at 213, the aforementioned

considerations combine to convince us that Lines is now

"clearly foreclosed" from further state court review of his

claims. As a result, exhaustion would be futile and is

excused. Put another way, based upon the futility of

requiring Lines to cure his procedural default, we will

consider his claims exhausted because "there are no state

remedies available to him." Coleman, 501 U.S. at 732.

21

As noted above, it does not necessarily follow, however,

that Lines is entitled to an adjudication of the merits of his

unexhausted federal habeas claims merely because it is

now futile to attempt to raise them in state court. A finding

of futility merely eliminates the procedural pretense of

requiring a federal habeas petitioner to return to an

unavailable state forum for nonexistent relief. Futility,

without more,19 does not mean that the federal courts may

proceed to the merits of the petitioner's claims. As the court

said in Whittlesey v. Circuit Court for Baltimore County, 897

F.2d 143, 146 (4th Cir.), cert. denied, 498 U.S. 922 (1990)

(another escape case):

That it may now be "futile" for Whittlesey to await

completion of his Florida sentence to challenge his

Maryland conviction begs the question of how that

futility has come about. The equitable principles

governing habeas relief will not permit Whittlesey to

create a situation in which seeking state post-

conviction relief is futile, and then invoke that same

futility to avoid the exhaustion requirement.

When exhaustion is futile because state relief is

procedurally barred, federal courts may only reach the

merits if the petitioner makes the standard showing of

"cause and prejudice" or establishes a fundamental

miscarriage of justice. Caswell, 953 F.2d at 861 (3d Cir.

1992). Unlike the petitioners in Doctor, Toulson, and

Lambert, Lines is not asserting his actual innocence or

facts that would suggest a "miscarriage of justice" in the

context of federal habeas jurisprudence. See Schlup v. Delo,

513 U.S. 298 (1995). Accordingly, we must focus on

whether Lines can establish "cause and prejudice" for his

default in state court. McCandless, 172 F.3d at 263. See

also Caswell, 953 F.2d at 861 (citing Coleman, 111 S.Ct. at

2557 n.1).

_________________________________________________________________

19. Typically, failures by the state: inordinate delay, failure to provide

adequate remedies, and the like. See, e.g., Allen, Wallace, Hollis,

Mayberry, and Hankins, supra.

22

IV. Cause and Prejudice

The only purported "cause" on this record is prior

appellate counsel's failure to raise and fairly present all of

Lines' substantive claims in state court. However, that is

not sufficient. The "cause" required to excuse a procedural

default must result from circumstances that are"external

to the petitioner, something that cannot fairly be attributed

to him" Coleman, 501 U.S. at 753. "Attorney inadvertence

is not `cause' because the attorney is the petitioner's agent

when acting or failing to act, in furtherance of the litigation,

and the petitioner must `bear the risk' of attorney error.

Coleman, 501 U.S. at 753. Lines does not argue that

counsel on direct appeal was constitutionally ineffective for

failing to present the substance of his claims to the

Pennsylvania Supreme Court on direct appeal.20 In fact, he

argues that his attorney could not present those claims

because the Superior Court never reached them. Given the

unique circumstances facing original appellate counsel,

that attorney can not be faulted for failing to include Lines'

substantive claims in the Petition for Allowance of Appeal.

After all, the decision that Lines wanted the Supreme Court

to review did not address the merits of his claims.

Accordingly, counsel limited Lines' Petition for Allowance of

Appeal to the Superior Court's application of the fugitive

forfeiture doctrine as that was the basis of the Court's

dismissal of his appeal.21 Thus, we are not now charged

_________________________________________________________________

20. Inasmuch as a defendant is entitled to counsel on direct appeal, a

successful challenge to the effectiveness of counsel's representation on

direct appeal under Strickland can establish the necessary cause to

excuse a procedural default. Coleman, 501 U.S. at 754 ("Where a

petitioner defaults a claim as a result of the denial of the right to

effective assistance of counsel, the state, which is responsible for the

denial as a constitutional matter, must bear the cost of any resulting

default and the harm to the state interests that federal habeas review

entails.")

21. This is not to suggest that counsel could not have included the

substantive issues in his Petition for Allowance of Appeal. As we noted

above, Doctor attempted exactly that when he appealed the Superior

Court's application of the fugitive forfeiture rule although it appears

that

Doctor included his substantive claims in his brief, and that the

substantive issue he briefed -- a due process violation -- did not fairly

present his subsequent assertion that "a trial in absentia was never

held." 96 F.3d at 680. As noted above, merely including a claim in the

brief to the Supreme Court is not sufficient to fairly present the claim.

However, we note what occurred in Doctor to contrast Doctor's appeal

with Lines' appeal.

23

with evaluating the stewardship of original appellate

counsel, or assessing blame for any "dereliction" on his

part. Moreover, claims of constitutional ineffectiveness

must themselves be exhausted by proper presentation to

the state courts and here that was not even attempted. See

Murray v. Carrier, 477 U.S. 478, 489 (1986). Thus, Lines

has not demonstrated any "cause" for defaulting the claims

raised on his direct appeal. Coleman, 501 U.S. at 753.

We reach the same conclusion with regard to Lines'

severance claim. Lines can not now successfully argue that

PCRA counsel was constitutionally ineffective in failing to

include a severance claim in his PCRA petition, and he has

not argued that counsel was ineffective in failing to raise it

on direct appeal.22 Accordingly, we hold that the District

Court did not err in dismissing Lines' habeas petition.

Although the District Court's analysis differed from ours,

the result is the same; although our analysis causes us to

modify the District Court's relief.

In his thoughtful analysis, our dissenting colleague

agrees with the majority's conclusion that it would be futile

for Lines to return to state court. However, Judge Debevoise

relies upon Doctor to conclude that "the peculiar state of

Pennsylvania's fugitive forfeiture rule both at the time Lines

committed his crime and at the time he sought review of

his conviction. . . ." should excuse the exhaustion

requirement. Dissent at 1. The parties also devote a

substantial portion of their briefs to discuss the relevance

of our holding in Doctor. However, we think that Doctor is

inapposite to our analysis of the issues surrounding Lines'

habeas petition.

V. Doctor v. Walters

Both Lines and the Commonwealth devote a substantial

portion of their briefs to arguing whether Pennsylvania's

fugitive forfeiture rule is an adequate and independent state

ground under our holding in Doctor as applied to Lines.

_________________________________________________________________

22. Moreover, as noted above, that claim of ineffectiveness would itself

have to be presented to the state courts in thefirst instance. Murray,

supra.

24

However, despite the parties' focus upon Doctor , we

conclude that our holding there is neither controlling nor

helpful to the present inquiry; although the facts in Doctor

are quite similar to the facts here.

Like Lines, Doctor fled during his bench trial on criminal

charges. However, the trial court thereafter entered a guilty

verdict against Doctor "apparently without conducting any

further proceedings or attempting to inform Doctor, his

attorney or the Commonwealth about its intention to enter

a verdict." 96 F.3d at 678. Lines was not apprehended until

five years later, and he was then formally sentenced on the

guilty verdict that had been entered when he escaped.

Doctor filed a direct appeal, and a state habeas corpus

petition. However, the Pennsylvania Superior Court

quashed his appeal pursuant to Pa. R. App. P. 1972(6),

which allows an appellate court to quash an appeal

"because the appellant is a fugitive." The Pennsylvania

Supreme Court denied Doctor's Petition for Allowance of

Appeal, and the United States Supreme Court denied his

petition for a writ of certiorari. However, unlike Lines,

Doctor attempted to present his underlying claims on direct

appeal to the Pennsylvania Supreme Court as well as his

challenges to the Superior Court's application of the fugitive

forfeiture rule.23

Thereafter, Doctor filed a petition under 28 U.S.C.S 2254

in an attempt to get federal habeas relief from his state

court conviction. Doctor's S 2254 petition included a claim

that his conviction in absentia violated his Sixth

Amendment right to a trial. The District Court dismissed

Doctor's petition for failure to exhaust because the Sixth

Amendment claim had not been presented in state court.

Doctor argued that it was futile to return to state court to

raise any unexhausted claims in a PCRA petition because

the Pennsylvania courts had already determined that his

_________________________________________________________________

23. We nevertheless concluded that Doctor had not fairly presented all of

his substantive claims to the Pennsylvania Supreme Court because,

although the brief that accompanied his Petition for Allowance of Appeal

asserted a denial of his "Constitutional right to due process," we

concluded that he had not adequately alleged "that a trial in absentia

was never held," 96 F.3d at 680, as alleged in his federal habeas

petition.

25

flight constituted a waiver of his right to appeal, and they

therefore would not address any PCRA petition that he

might file in an effort to exhaust his Sixth Amendment

claim for federal habeas purposes. 96 F.3d at 680.

We affirmed the District Court's dismissal based upon

the unexhausted claims in Doctor's petition. However, we

also noted that Doctor could "resubmit a petition asserting

only his exhausted claims." Therefore, "in the interests of

judicial economy," we addressed the District Court's

conclusion that application of Pennsylvania's fugitive

forfeiture rule was an adequate and independent state rule

barring federal habeas relief. Id. at 683.

We concluded that, under Pennsylvania law, Doctor could

seek collateral relief by asserting his Sixth Amendment

claim in a PCRA petition, see 42 Pa.C.S.S 9541- 46 (Supp.

1996), because "all avenues of direct appeal are clearly

foreclosed." 96 F.3d at 682. However, we recognized that

such collateral review was problematic both because he had

not raised his Sixth Amendment claim on direct appeal,

and because "under the fugitive forfeiture rule[Doctor]

waived all rights to have his claims considered." Id. at 681.

We noted, however, that Pennsylvania courts allowed for a

"limited exception" to the application of the fugitive

forfeiture rule when a petitioner could demonstrate either a

"miscarriage of justice, which no civilized society can

tolerate," or "actual innocence." Id . at 682 (citing

Commonwealth v. Lawson, 519 Pa. 504, 549 (1988)). We

concluded that the unique and rather bizarre

circumstances surrounding Doctor's in absentia conviction

were such that we could not conclude with certainty that

the Pennsylvania courts would not find a miscarriage of

justice. 96 F.3d at 682 ("Doctor alleges facts that could

support a finding that `the proceedings resulting in his

conviction were so unfair that a miscarriage of justice

occurred which no civilized society can tolerate.' ").24

_________________________________________________________________

24. In his S 2254 petition, Doctor claimed:"No record of trial of Absentia

said to have been held on Aug. 29th 1986--I was not convicted in a

court of law--I was never told on record or otherwise I was found guilty

--I was never given any appeal rights before or after sentencing. No

attorney is on record to have represented me in the mysterious absentia

trial held--the trial transcripts in my case stop on page 129 at which

time case was continued generally." Doctor , 96 F.3d at 679.

26

Moreover, an examination of Pennsylvania cases

established that when Doctor escaped, Pennsylvania courts

recognized that they had the discretion to hear an appeal

so long as custody of the fugitive-appellant "had been

restored before the appellate process was ever initiated," id.

at 685-6, as was the case there. Accordingly, we held that

Pennsylvania's fugitive forfeiture rule was not an adequate

and independent state rule, and that we could not say with

certainty that the state courts would turn a deaf ear to

Doctor's Sixth Amendment claim. Thus, we dismissed

Doctor's petition and allowed him to attempt to exhaust his

claim in state court. However, for all the reasons we have

noted, it would be futile for Lines to do so. Moreover, Lines

does not argue (nor can he) that our failure to address the

merits of his claim would create the substantial risk of a

miscarriage of justice that we found in Doctor .

VI. Conclusion

Accordingly, for the reasons set forth above, we conclude

that the District Court did not err in dismissing Lines'

federal habeas petition; and we will affirm, but modify, the

District Court's order by dismissing the petition with

prejudice.

27

DEBEVOISE, Senior District Judge, dissenting:

I have no quarrel with the majority opinion's thorough

analysis of federal law governing exhaustion, futility and

cause and prejudice or with their analysis concerning

Lines's right to further review of his constitutional claims

under Pennsylvania procedural law. It is my view, however,

that these analyses are largely irrelevant in the present

case. By reason of the peculiar state of Pennsylvania's

fugitive forfeiture rule both at the time Lines committed his

crime and at the time he sought review of his conviction (i)

exhaustion was excused from the outset because state law

foreclosed review of any of his claims and (ii) flight did not

constitute a procedural default requiring a cause and

prejudice review. The reasoning of Doctor v. Walters, 96

F.3d 675(3d Cir. 1996) compels this result.

The majority opinion sets forth the governing law:

Petitioners who have not fairly presented their claims

to the highest state court have failed to exhaust those

claims. O'Sullivan v. Boerckel. If, however, state

procedural rules bar a petitioner from seeking further

relief in state courts, "the exhaustion requirement is

satisfied because there is `an absence of available State

corrective process.' 28 U.S.C. S 2254(b). McCandless v.

Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). Even so,

this does not mean that a federal court may, without

more, proceed to the merits. Rather, claims deemed

exhausted because of a state procedural bar are

procedurally defaulted, and federal courts may not

consider their merits unless the petitioner "establishes

`cause and prejudice' or a `fundamental miscarriage of

justice' to excuse the default." Id. See also Coleman,

501 U.S. at 731.

Slip Op. at 10-11. (Footnote omitted.)

Lines became a fugitive on October 10, 1986 and was

convicted in absentia. He was apprehended on December

21, 1986, pursued post-verdict motions and was sentenced

to life imprisonment on July 19, 1991. Thereafter, as

recited in the majority opinion, he pursued his appeal to

the Pennsylvania Superior Court, his Petition for Allowance

of Appeal to the Pennsylvania Supreme Court (denied

28

October 28, 1992), his PCRA petition (filed March 31, 1993)

and unsuccessful appeals from denial of the PCRA petition.

During and after the time frame encompassed by these

proceedings Pennsylvania's fugitive forfeiture rule, as

interpreted by Pennsylvania's Supreme Court, went through

a series of transformations. The applicable procedural rule,

Pa. R. App. P. 1972(6), provides in relevant part that "any

party may move: . . . (6) [t]o continue generally or to quash

because the appellant is a fugitive. . . ." In Doctor this court

had occasion to determine the manner in which the

Pennsylvania Supreme Court construed this rule as of June

24, 1986, the date when Doctor had fled from his criminal

trial. Lines fled on October 10 of the same year, and there

is nothing to suggest that Pennsylvania's law on the subject

changed during the less than four months interval between

his and Doctor's flights. The state of the law at relevant

times was critical in Doctor, and for the same reasons it is

critical in the present case.

Doctor had submitted a mixed habeas corpus petition,

containing exhausted and unexhausted claims. Following

the dictate of Rose v. Lundy, 455 U.S. 509, 102 S. Ct.

1198, 71 L. Ed.2d 379 (1982), this court affirmed the

district Court's dismissal of the petition. The district court,

however, had dismissed the petition not only on failure to

exhaust grounds. It also found that the Pennsylvania

courts' refusal to consider the merits of Doctor's direct

appeals based on the fugitive forfeiture rule constituted

application of an independent and adequate state

procedural rule. Doctor's failure to comply with that rule

constituted a procedural default, requiring dismissal of the

habeas petition since he had not shown cause and

prejudice. Anticipating that Doctor might file a new petition

containing only exhausted claims and that he would again

be faced with the procedural default contention, this court

addressed the merits of that defense.

A habeas petitioner is entitled to federal review of a

procedurally defaulted claim only if he can demonstrate

cause for the procedural default and prejudice resulting

therefrom. Doctor, 96 F.3d at 683. However,"[a] state rule

provides an independent and adequate basis for precluding

federal review of a state prisoner's habeas claim only if: (1)

29

the state procedural rule speaks in unmistakable terms; (2)

all state appellate courts refused to review the petitioner's

claims on the merits; and (3) the state courts' refusal in

this instance is consistent with other decisions." Id. at 683-

684.

Doctor analyzed two pre-1986 Pennsylvania Supreme

Court decisions applying the fugitive forfeiture rule.

Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741

(1975) (There was no basis to dismiss a formerly fugitive

defendant's appeal because he was in custody when the

case was actually argued and would therefore be subject to

the jurisdiction of the court and thus responsive to any

judgment entered) and Commonwealth v. Passaro , 504 Pa.

611, 476 A.2d 346 (1984) (Petition of defendant who

absconded during appeal to reinstate appeal after recapture

denied). Doctor also noted that after Galloway and prior to

1986 Pennsylvania's intermediate courts consistently

recognized their discretion to hear a properly filed appeal as

long as the criminal defendant had returned to the

jurisdiction before the appeal was dismissed.

Based on this review of the state of Pennsylvania law as

it existed in 1986, this court held that as of that date "it

was not `firmly established' that Pennsylvania courts lacked

the discretion to hear an appeal first filed after custody had

been established," and consequently "the state courts in

this case did not rely on an `adequate' procedural rule to

deny petitioner a review of his appeal on the merits."

Doctor, 96 F.2d at 686. In these circumstances Doctor was

not required to establish cause and prejudice in the event

he filed a habeas petition containing only exhausted claims.

In 1992 the Pennsylvania Supreme Court firmly closed

the door to any appeals by a fugitive defendant, stating:

A defendant's voluntary escape acts as a per se

forfeiture of his rights of appeal, where the defendant

is a fugitive at any time after post-trial proceedings

commence. Such a forfeiture is irrevocable and

continues despite the defendant's capture or voluntary

return to custody. Thus, by choosing to flee from

justice, appellant has forever forfeited his right to

appeal.

30

Commonwealth v. Jones, 530 Pa. 536, 541, 610 A.2d 439,

441 (1992). This was the state of the law when the Superior

Court held that the trial court erred in failing to quash

Lines's post-verdict motions and that Lines had"forever

forfeited his right to appeal by electing to become a fugitive

after post-trial procedures have begun." Commonwealth v.

Lines, 415 Pa. Super. 438, 443, 609 A.2d 832, 834,

allocatur denied, 532 Pa. 662, 618 A.2d 983 (1992). It was

the state of the law when the Supreme Court denied Lines's

Petition for Allowance of Appeal.

Subsequently the Pennsylvania Supreme Court again

revisited the fugitive forfeiture rule, holding that the

sanction for absconding must be a reasonable response to

a defendant's flight, and there must be some rational link

between the flight and the appellate process to justify

imposing a forfeiture on a defendant. In re J.J. , 540 Pa.

274, 656 A.2d 1355 (1995); Commonwealth v. Huff , 540 Pa.

535, 658 A.2d 1340 (1995). Pennsylvania's rule limiting

retroactive application of new rules of law to cases pending

at the time the new rule is announced precluded and still

precludes Lines from taking advantage of this change in the

law.

Whether Lines is confronted with a procedural default

and must establish cause and prejudice must be

determined on the basis of Pennsylvania's fugitive forfeiture

rule as it existed in 1986 when he became a fugitive. As

stated in Doctor, "We must decide whether[the fugitive

forfeiture rule] was firmly established and regularly applied,

not in 1993 when the Supreme Court relied on it, but

rather as of the date of the waiver that allegedly occurred

when Doctor escaped in 1986" at 684. As recited above, in

1986 when Lines escaped the fugitive forfeiture rule was

not firmly established and regularly applied. Consequently,

his petition is not subject to a procedural default defense

based on the fugitive forfeiture rule and he is not required

to establish cause and prejudice.

On the other hand, when Lines sought relief from his

conviction in the state courts Pennsylvania law had

changed. By that time the fugitive forfeiture rule, as

interpreted by the Supreme Court, had become an

impenetrable barrier to relief of any sort in the state courts.

31

Not only were an appeal and a PCRA petition futile, there

was a total absence of available state corrective process of

any sort.1 In these circumstances exhaustion is excused

and Lines must be permitted to assert in a habeas petition

both the grounds he raised in his abortive appeal to the

Superior Court and the ineffective assistance of counsel

claim based on the failure of trial counsel to move for

severance which he did not raise in any Pennsylvania court.

The same impenetrable barrier prevailed when Doctor

sought relief in the state courts. In his case, however, this

court detected a small chink in this barrier, namely, an

appeal or a PCRA petition in which the once fugitive

petitioner seeking relief from a waiver "can demonstrate a

`miscarriage of justice, which no civilized society can

tolerate.' " Doctor, 96 F.2d at 682. This court rejected

Doctor's futility contention stating "[w]e cannot conclude

that there is no chance that the Pennsylvania courts would

find a miscarriage of justice sufficient to override the waiver

requirements and permit review under PCRA." Id. at 683.

Doctor contended that lack of a trial even in absentia

violated his Sixth Amendment rights. This court opined

that the Pennsylvania courts might consider this a

miscarriage of justice claim which would override a fugitive

forfeiture waiver. It would follow that had this court not

found that Doctor's unexhausted claim asserted

miscarriage of justice, it would have concluded that it

would have been futile to require him to return to the

_________________________________________________________________

1. See 28 U.S.C. S 2254(b)(1):

(b)(1) An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall

not be granted unless it appears that--

(A) the applicant has exhausted the remedies available in

courts of the State; or

(B)(i) there is an absence of available State corrective process;

or

(ii) circumstances exist that render such process ineffective to

protect the rights of the applicant.

(Emphasis added.)

32

Pennsylvania courts and exhaustion would have been

excused.

In the present case Lines does not assert any claims

which might be characterized as a "miscarriage of justice,

which no civilized society can tolerate." Thus the reasoning

of Doctor compels the conclusion that exhaustion was

excused in the present case because it would have been

futile to require that Lines exhaust state remedies. 26

It is my view that it is unnecessary to determine the

extent to which Lines raised his various claims in one or

another of his abortive state court proceedings. From the

outset under the Pennsylvania Supreme Court's then

prevailing application of the fugitive forfeiture rule, Lines

had no right to appeal or to post conviction relief of any

sort. The fact that he did seek state court relief is of no

moment. It was all an exercise in futility which he had no

obligation to pursue. In these circumstances he should be

permitted to assert in the district court all the claims set

forth in his S 2254 petition.

For the reasons set forth above I dissent from the

majority opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

________________________________________________________________

26. In Doctor, the petitioner had in fact sought to present his other

federal claims to the Pennsylvania Superior and Supreme Courts, only to

have them dismissed on the basis of the fugitive forfeiture rule. Thus

there was no need for this court to consider whether failure to have

raised those non-miscarriage of justice claims in the state courts would

have been excused as futile. After the Pennsylvania Supreme Court

changed its interpretation of the fugitive forfeiture rule to make its

application discretionary, failure of a fugitive to exhaust his state

remedies could no longer be excused on futility grounds.

33