Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2004

Rill v. Meyers
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3575




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Recommended Citation
"Rill v. Meyers" (2004). 2004 Decisions. Paper 993.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/993


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 02-3575




                                   IRVIN JOHN RILL,

                                        Appellant

                                              v.

                             ROBERT MEYERS;
                   ATTORNEY GENERAL OF PENNSYLVANIA.




       ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
                  MIDDLE DISTRICT OF PENNSYLVANIA

                              (Dist. Court No. 00-cv-1118)
                        District Court Judge: Thomas I. Vanaskie


                                Argued: January 13, 2004

               Before: ALITO, CHERTOFF, and BECKER, Circuit Judges

                           (Opinion Filed: February 20, 2004)

                                                   JOSHUA D. WOLSON * (Argued)
                                                   Covington & Burling
                                                   1201 Pennsylvania Avenue, N.W.


   *
    We appreciate the willingness of Mr. Wolson and his firm to undertake the
representation of the appellant on a pro bono basis. Mr. Wolson’s excellent briefing and
argument ably presented the appellant’s position and were of great assistance to the court.
                                                  Washington, DC 20004

                                                  Counsel for Appellant

                                                  GEORGE P. SKUMANICK (Argued)
                                                  Office of the District Attorney,
                                                  County of Wyoming
                                                  P.O. Box 209
                                                  Tunkhannock, PA 18657

                                                  Counsel for Appellee




                               OPINION OF THE COURT


PER CURIAM:

       As we write only for the parties involved we need not repeat the facts of this case.

While we have carefully considered Rill’s argument that his good faith effort to appeal to

the Pennsylvania Supreme Court excused any procedural default, we find that it is not

supported by our jurisprudence. We affirm the District Court order denying the habeas

petition because Rill did not properly exhaust his claims in the Pennsylvania courts. See

28 U.S.C. §2254(b)(1).

       Rill claims that he made a good faith effort to present his appeal to the

Pennsylvania Supreme Court and that he procedurally defaulted because of his ineffective

appellate counsel. Even if this Court accepted such an argument, however, Rill has never

given a sufficient explanation as to why he did not file a petition under Pennsylvania’s

Post-Conviction Relief Act. See 42 Pa.C.S.A. § 9545. If Rill had done so, the PCRA

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Court could have heard his ineffective appellate counsel claim, see Commonwealth v.

Williams, 

(Pa. 2001), and reinstated his appeal to the Pennsylvania

Supreme Court, see, e.g., Commonwealth. v. Lantzy, 

, 571-572 (Pa.1999);

Boofer v. Lotz, 

, 1049 fn. 4 (Pa.Commw.Ct.. 2002)(“Under the Post

Conviction Relief Act, 42 Pa.C.S. §§ 9541- 9546, an inmate may file such a petition with

the court of common pleas to restore the inmate’s right to appeal”), which would then

have had a full and fair opportunity to hear Rill’s federal claims. See Evans v. Court of

Common Pleas, Delaware County, Pa., 959 F2d 1227, 1230 (3d Cir. 1992) cert.

dismissed, 

(1993). Rill did not file the PCRA petition and is now time-

barred from doing so. His last filing in the Pennsylvania courts was his petition nunc pro

tunc to the Pennsylvania Supreme Court, but we have already found such a filing to be an

inadequate mode of exhausting claims. See, e.g., Caswell v. Ryan, 

(3d Cir.

1992)

        For these reasons, the order of the District Court is affirmed.




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