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Precedential or Non-Precedential: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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Recommended Citation
"Lines v Larkins" (2000). 2000 Decisions. Paper 61.
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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,

, 440, 

, 833, allocatur
denied, 

, 

(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." 

at 

(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, 

, 541, 

,
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. 

, 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," 

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,

(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, 

(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." 

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." 

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, 

  (1975),
and Paull v. Paull, 

, 

(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. 

.

                               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, 

,
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); 

. 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 , 

, 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, 

, 856 (3d
Cir. 1992). The burden of establishing that such claims
were fairly presented falls upon the petitioner. Lambert v.
Blackwell, 

, 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, 

, (1995), by presenting evidence that he
claimed showed that two others were actually responsible for the crime
he had been convicted 

.

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, 

, 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." 

.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. 

("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"); 

("because McCandless
is procedurally barred from asserting these claims in state court, his
claims are considered exhausted due to procedural default"); Grey v.
Hoke, 

, 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, 

, 386-387, 

, 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, 

, 238
n.3, 

, 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 

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. 

.

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, 

, 573 (1st Cir. 1996); where the state
provides no means of seeking the relief sought, Wallace v.
Cody, 

, 1172 (10th Cir. 1991), Dawan v.
Lockhart, 

, 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, 

, 1473-1475, 1479 (11th Cir. 1991), cert. denied,

(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, 

, 249-250 (3d Cir. 1991).
Accordingly, we have held that exhaustion is not required
if there is inordinate delay in state procedures, 

or if state officials have obstructed the petitioner's attempts
to obtain state remedies, Mayberry v. Petsock , 

(3d Cir.), cert. denied, 

(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." 

; Lambert v. Blackwell, 

, 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, 

, 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.


(emphasis added), see also 

. 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, 

, 141 (3d Cir. 1986).
See also Banks v. Horn, 

, 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, 

, 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.,

, 

, 1362-1363 (1995). However, in
Commonwealth v. Huff, 

, 

(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, 

, 

(1983);
Commonwealth v. Selby, 

, 

, 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, 

, 407, 

, 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, 

(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 

(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. ___, ___, 

,
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 ___, 

(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, 

, 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, 

, 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, 

,
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,

, 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.

("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. 

, 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." 

.

                               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, 

, 146 (4th Cir.), cert. denied, 

(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. 

(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,

(1995). Accordingly, we must focus on
whether Lines can establish "cause and prejudice" for his
default in state court. 

. See
also 

(citing 

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" 

. "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.

. 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. 

("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

. 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, 

, 489 (1986). Thus, Lines
has not demonstrated any "cause" for defaulting the claims
raised on his direct appeal. 

.

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. 

.

                               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 

. 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 

, 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 

.

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. 

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

. 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." 

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, 

, 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

("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," 

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, 

(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, 

, 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." 

.

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, 

, 

, 

(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. 

. 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." 

684.

Doctor analyzed two pre-1986 Pennsylvania Supreme
Court decisions applying the fugitive forfeiture rule.
Commonwealth v. Galloway, 

, 

(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 , 

, 

(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."

. 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, 

, 541, 

,
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, 

, 443, 

, 834,
allocatur denied, 

, 

(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. , 

, 

(1995); Commonwealth v. Huff , 

, 

(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.' " 

. 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." 

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.)

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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.

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