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D ock e t 99-3337

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. e du/thir dc ir c uit_2001/206Filed August 27, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

99-3337

ROBERT E. WENGER, JR.,

Appellant

v.

FREDERICK K. FRANK; ATTORNEY GENERAL

OF PENNSYLVANIA

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. No. 98-cv-01629) District Court Judge: Malcolm Muir

Argued: March 13, 2001

Before: ALITO and RENDELL, Circuit Judges, and SCHWARZER,* Senior District Judge

(Opinion Filed: August 27, 2001)

Mary Gibbons, Esq. (Argued) 600 Mule Road, #16 Holiday City Plaza III Toms River, NJ 08758

Counsel for Appellant

___________________________________________________ ______________ * The Honorable William W Schwarzer, Senior Distric t Judge for the Northern District of California, sitting by designa tion.Michael A. George, Esq. (Argued)

District Attorney Office of District Attorney Adams County Courthouse
111-117 Baltimore Street Gettysburg, PA 17325

Counsel for Appellee

D. MICHAEL FISHER Attorney General

ROBERT A. GRACI Assistant Executive Deputy Attorney General Office of the Attorney General 16th Floor, Strawberry Square Harrisburg, PA 19120

Counsel for Amicus Attorney General of Pennsylvania

OPINION OF THE COURT

ALITO, Circuit Judge:

This is an appeal from a District Court order dismi ssing a petition for a writ of habeas corpus filed under 28 U.S.C. S 2254. The District Court dismissed the petition u nder Rose v. Lundy, 455 U.S. 509 (1982), holding that th e petition, which advanced three claims, contained tw o that were unexhausted and was therefore a "mixed petitio n." On appeal, Wenger contends that the supposedly unexhau sted claims would no longer be entertained by the Pennsy lvania courts. Wenger argues that these claims, although n ever fairly presented to the Supreme Court of Pennsylvan ia, should be regarded as exhausted by virtue of a gene ral order issued by the Pennsylvania Supreme Court in M ay 2000. See In re: Exhaustion of State Remedies in Cr iminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000). Weng er also maintains that, even if these claims were procedura lly defaulted, the procedural default has been waived. In addition, he contends that his third claim has clea rly been

2exhausted, has not been procedurally defaulted, and

consequently should have been entertained on the me rits by the District Court. For the reasons explained be low, we
reverse the decision of the District Court and rema nd for further proceedings.

I.

In October 1984, Robert Wenger was arrested and charged in the Court of Common Pleas of Adams Count y with murder of the first degree (18 Pa. Cons. Stat. Ann. S 2502(a)), murder of the third degree (18 Pa. Cons . Stat. Ann. S 2502(c)), voluntary manslaughter (18 Pa. Con s. Stat. Ann. S 2503(a)(1)), and aggravated assault (18 Pa. Cons. Stat. Ann. S 2702(a)(l)). A preliminary hearing was held, and Wenger was held for court. Wenger and the Commonwea lth later negotiated a plea agreement under which the Commonwealth did not seek the death penalty and Wen ger pled guilty to criminal homicide generally. After W enger pled, a degree-of-guilt hearing was held in May 198 5, and Wenger was found guilty of murder of the first degr ee. As required by Pennsylvania law, see 18 Pa. Cons. Stat . Ann. S 1102(a); 42 Pa. Cons. Stat. Ann. S 9756(c), Wenge r was sentenced in November 1985 to a term of life impris onment without parole.

Wenger appealed to the Superior Court. The sole iss ue raised on appeal concerned the sufficiency of the e vidence to support the trial court's finding that he was gu ilty of murder of the first degree. The Superior Court affi rmed, and Wenger did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

In February 1988, Wenger filed a petition under Pennsylvania's Post-Conviction Hearing Act ("PCHA") , 42 Pa. Cons. Stat. Ann. SS 9541 et seq., amended and r enamed Post-Conviction Relief Act by the Act of April 13, 1988, P.L. 336, No. 47. Wenger raised three claims. He argued (1) that his trial counsel was ineffective for erroneously a dvising him "that he would be released within ten years if he was sentenced to life imprisonment," (2) that his trial counsel was ineffective for failing to advise him concernin g withdrawal of his guilty plea, and (3) that his tri al counsel

3was ineffective in failing to preserve the right to petition for

allowance of appeal to the Pennsylvania Supreme Cou rt.

The Court of Common Pleas held a hearing and receiv ed testimony from Wenger, his father, mother, and brot her, and his trial attorney. See Commonwealth v. Wenger, Nos. CC-472-84 and CC-496-84 (Adams County Ct. Coin. P1. Oct. 22, 1990). Wenger's attorney testified that he did not give incorrect estimates of Wenger's potential sent ence, and the court found this testimony to be credible. The court then stated that Wenger had engaged in an extensive colloquy with the court at the time of his plea, an d therefore Wenger understood that he would be senten ced to imprisonment for life. The court rejected Wenger's second claim because Wenger knew of his right to withdraw his guilty plea and Wenger did not request that his att orney move to do so. Finally, the court denied relief on Wenger's third claim because Wenger's counsel had taken a di rect appeal to the Superior Court, and granting leave to seek direct appellate review by the state supreme court at this late stage would be redundant in light of Wenger' s postconviction proceedings. The court therefore dismiss ed Wenger's petition, and Wenger took a timely appeal to the Superior Court, raising the same three issues. The Superior Court affirmed the dismissal in April 1991, and Wen ger failed to file a timely petition for allowance of a ppeal with the Pennsylvania Supreme Court. Wenger later filed a petition for leave to file a petition for allowance of appeal nunc pro tunc, but the Pennsylvania Supreme Court d enied that request in March 1992.

In January 1997, Wenger filed a petition under Pennsylvania's revised Post-Conviction Relief Act ( "PCRA"), 42 Pa. Cons. Stat. Ann. S 9541 et seq. This petitio n, as ultimately amended, claimed that Wenger's convictio n resulted from a guilty plea that had been unlawfull y induced, that an unlawful sentence of life imprison ment without parole had been imposed, and that Wenger ha d
been denied the effective assistance of counsel. In a memorandum submitted with this motion, Wenger discussed various theories supporting his claim tha t his sentence was illegal. Among other things, Wenger ra ised the following question:

4Are legal definitions and common understandi ngs of

the terms "life imprisonment" and "life impr isonment without [right to] parole" constitutionally distinguishable such that imposition of the latter as an equivalent substitute for the former invokes protection

of the Due Process Clause of the Fourteenth

Amendment as well as the Cruel and Unusual Punishment prohibitions of the Eighth Amendm ent?

App. 59-60. For convenience, we will refer to this argument as the "Due Process/Eighth Amendment" argument.

The Court of Common Pleas dismissed the petition an d issued an opinion. The court noted that one of Weng er's contentions in his first petition for post-convicti on relief was that "plea counsel erroneously told and led[him ] to believe that his exposure was ten years at most." A pp. 66. The court noted that it had previously rejected thi s argument and had found "that defendant clearly
understood that he would be sentenced to life imprisonment." Id. The court further observed that this decision has been affirmed by the Superior Court. I d. The court then noted that the current petition also all eged "that counsel was ineffective for failing to advise [Weng er] that life meant life without parole," and the court obse rved that this "assertion is nothing more than a reworked ver sion of a previously litigated claim" and did not justify e ither a hearing or relief. Id.

The court then added:

Additionally, defendant has sought permissio n to amend his petition in order to attack the le gality of his sentence. Although we are impressed with def endant's brief, we decide the challenge does not enti tle him to relief. A sentence of life imprisonment is l egal and violates neither equal protection nor the pr ohibition against cruel and unusual punishment.

Id.

Wenger appealed this decision to the Superior Court and raised two arguments. He contended that "plea couns el's ineffective assistance violated rights guaranteed b y the
Sixth and Fourteenth Amendments to the United State s

5Constitution," and he asserted the Due Process/Eigh th

Amendment argument. App. 70.

The Superior Court affirmed. The court wrote that i t "need not reach and discuss the issues posited on t his second appeal for ineffectiveness relief " because, as the court below had put it, the current appeal was " `n othing more than a reworked version of a previously litiga ted claim and does not justify either a relief or hearing.' " App. 71-72. The court stated that it had "already ruled on the merits of whether the guilty plea was entered knowingly and intelligently" and added: "We are constrained to co nclude that the only issues that Wenger now seeks to prese nt to this tribunal have been previously litigated." Id. at 72-73.

Wenger filed a petition for allowance of appeal to the Pennsylvania Supreme Court. The only issue raised w as the Due Process/Eighth Amendment argument. Leave to app eal was denied in May 1998.

Wenger then filed a petition for a writ of habeas c orpus under 28 U.S.C. S 2254 in the United States Distric t Court for the Middle District of Pennsylvania. The petiti on raised the following three claims:

1. Whether petitioner was denied his right t o effective
assistance of counsel based on counsel's err oneous advice that even if a life term was imposed, petitioner would only be required to serve a seven to t en year term of imprisonment before parole?

2. Whether petitioner was denied effective a ssistance of counsel when plea counsel failed to confe r with the petitioner regarding withdrawal of the plea and
counsel's failure to file such a motion?

3. Whether legal definitions and common understandings of the terms "life imprisonme nt" and "life imprisonment without parole" are Const itutionally distinguishable such that imposition of the latter as an equivalent substitute for the former invokes protection

of the Due Process Clause of the Fourteenth

Amendment as well as the cruel and unusual punishment prohibitions of the Eighth Amendm ent?

6The Magistrate Judge to whom the case was referred

recommended that Wenger's petition be dismissed for failure to exhaust state remedies, and the District Court adopted that recommendation. The District Court
concluded that the first two claims had not been fa irly presented to the Pennsylvania Supreme Court and wer e thus unexhausted. The court noted that Wenger had argued that, if the first two claims were found to be unexhausted, he wished to delete them and proceed w ith only the third, exhausted claim. The court rejected that request, however, because Wenger had not filed a mo tion to amend or resubmit his habeas corpus petition. The c ourt therefore dismissed the entire petition, and Wenger took the present appeal.

II.

We first consider the question whether the two inef fective assistance of counsel claims presented in Wenger's federal habeas petition remain unexhausted. With two except ions not applicable here, 28 U.S.C. S 2254(b)(1) provide s that "[an application for a writ of habeas corpus on beh alf of a person in custody pursuant to the judgment of a Sta te court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in t he courts of the State."1 Under 28 U.S.C. S 2254(c), s uch a petitioner "shall not be deemed to have exhausted t he
remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by a ny available procedure, the question presented." In O' Sullivan v. Boerckel, 526 U.S. 838 (1999), the Supreme Court held that while exhaustion does not demand that state pr isoners "invoke extraordinary remedies," "state prisoners m ust give the state courts one full opportunity to resolve an y constitutional issues by invoking one complete roun d of the State's established appellate review process." Id. at 844-45. This means, the Court explained, that state prisone rs must "file petitions for discretionary review when that review is

___________________________________________________ ______________

1. Because Wenger's federal petition was filed afte r the effective date of the Antiterrorism and Effective Death Penalty Act, the version of S 2254 as amended by that Act applies.

7part of the ordinary appellate review procedure in the

State." Id. at 847. The Court further noted that, i n determining whether a state prisoner has preserved an issue for presentation in a federal habeas petition ,"we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhauste d those remedies, i.e., whether he has fairly present ed his
claims to the state courts." Id. at 848. If a claim has not been fairly presented to the state courts but furth er statecourt review is clearly foreclosed under state law, exhaustion is excused on the ground of futility. Se e, e.g., Lines v. Larkin, 208 F.3d 153, 160 (3d Cir. 2000); Toulson v. Beyer, 987 F.2d 984, 987-88 (3d Cir. 1993). Unde r those circumstances, the claim is procedurally defaulted, not unexhausted, and the claim may be entertained in a federal habeas petition only if there is a basis for excusi ng the procedural default. Procedural default may be excus ed if a petitioner can show "cause" and "prejudice" or that a "fundamental miscarriage of justice" would result. Edwards v. Carpenter, 529 U.S. 446, 551 (2000).

In the present case, Wenger raised his ineffective
assistance of counsel claims before the Court of Co mmon Pleas and the Superior Court in his first state pet ition for collateral review, and both of those courts enterta ined (and rejected) those claims on the merits. However, Weng er did not "fairly" present those claims to the Pennsylvan ia Supreme Court, because he did not file a timely pet ition for allowance of review. Although he did seek leave for permission to file such a petition out of time, the Pennsylvania Supreme Court denied that petition. Un der those circumstances, the claims were not fairly pre sented to the state supreme court. Caswell v. Ryan, 953 F. 2d 853, 858-60 (3d Cir. 1992). It is also apparent that Wen ger did not fairly present these claims to the Pennsylvania Supreme Court in connection with his second state petition for collateral review. While Wenger did file a timely p etition for allowance of appeal on that occasion, his petition did not
raise the ineffective assistance of counsel claims.

Thus, if it was necessary under O'Sullivan for Weng er to present these claims to the Pennsylvania Supreme Co urt -- that is to say, if the filing of a petition for all owance of

8appeal was "part of the ordinary appellate review p rocedure

in the state" -- the claims were not properly exhau sted. It is apparent, however, that the Pennsylvania courts would no longer entertain those claims, see Doctor v. Wal ters, 96 F.3d 675, 681-82 (3d Cir. 1996), and neither Wenger nor the Commonwealth suggests otherwise. Indeed, the Co urt of Common Pleas and the Superior Court refused to consider these claims on the merits when Wenger attempted to raise them in his second state collate ral attack. Accordingly, exhaustion would be excused on the basis of futility, and the claims would be subject to the doctrine of procedural default. Under these circums tances, we must decide whether the filing of a petition for discretionary review by the Pennsylvania Supreme Co urt was "part of the ordinary appellate review procedur e in the state" at the time or times in question.

Wenger maintains that discretionary review by the Pennsylvania Supreme Court is not part of the ordin ary process of appellate review by virtue of Order 218, which was issued by the Pennsylvania Supreme Court in May 2000. That order provides as follows:

AND NOW, this 9th day of May, 2000, we hereb y recognize that the Superior Court of Pennsyl vania reviews criminal as well as civil appeals. F urther, review of a final order of the Superior Cour t is not a matter of right, but of sound judicial discr etion, and an appeal to this Court will only be allowed wh en there are special and important reasons therefor. Pa.R.A.P. 1114. Further, we hereby recognize that crim inal and post-conviction relief litigants have petiti oned and do routinely petition this Court for allowance of appeal upon the Superior Court's denial of relief i n order to exhaust all available state remedies for pur poses of federal habeas corpus relief.

In recognition of the above, we hereby decla re that in all appeals from criminal convictions or pos t-conviction relief matters, a litigant shall not be requ ired to petition for rehearing or allowance of appea l following an adverse decision by the Superior Court in order to
be deemed to have exhausted all available st ate remedies respecting a claim of error. When a claim has

9been presented to the Superior Court, or to the

Supreme Court of Pennsylvania, and relief ha s been denied in a final order, the litigant shall be deemed to
have exhausted all available state remedies for purposes of federal habeas corpus relief.

This Order shall be effective immediately.

This Order was in all likelihood prompted by Justic e Souter's concurring opinion in O'Sullivan. In that opinion,
Justice Souter stated that he understood O'Sullivan "to have left open the question . . . whether [the Cour t] should construe the exhaustion doctrine to force a State, in effect, to rule on discretionary review applications when t he State has made it plain that it does not wish to require such applications before its petitioners may seek federa l habeas relief." 526 U.S. at 849 (Souter, J., concurring). Justice Souter went on to note the example of an order issu ed by the Supreme Court of South Carolina that is similar to the Pennsylvania Supreme Court's Order 218. Id. Wenger interprets the Pennsylvania Supreme Court's Order N o. 218
to mean that he exhausted his ineffective assistanc e of
counsel claims when he raised those claims in the C ourt of Common Pleas and the Superior Court in his first pe tition
for state collateral review and that his failure fa irly to present those claims to the Pennsylvania Supreme Co urt is immaterial for exhaustion purposes.

After hearing oral argument in this case, we reques ted the parties to provide supplemental submissions add ressing the question whether Order 218 "applies to a case i n which the time for filing a petition for discretionary re view expired prior to the date of the order." We also invited th e Attorney General of Pennsylvania to provide an amicus submis sion on this question. In that submission, the Attorney General contended that Order 218 should not be interpreted as having a retroactive effect and also that the Order was issued in violation of the state constitution. The Attorney General argued that the Order purports to alter the state supreme court's jurisdiction but that under the sta te constitution the state supreme court may not alter the jurisdiction of any court. Pa. Const. art. V, S 10( c).

Although it will undoubtedly be necessary for our c ourt to address the broader question whether the filing of a

10petition for discretionary review with the Pennsylv ania

Supreme Court is now "part of the ordinary appellat e review procedure in the state," we find it unnecess ary to reach that issue here. In this case, we find it suf ficient to hold that Order 218 did not retroactively alter the nature of "the ordinary appellate review procedure" in the
Commonwealth. We reach this conclusion for three

reasons.

First, we believe that the language of the Order, a lthough not in itself conclusive, suggests that the Order w as intended to be prospective only. The Order states t hat the court "hereby declare[s]" that, in appeals from cri minal convictions or post-conviction relief matters, "a l itigant shall not be required to petition for rehearing or allowa nce of appeal." Order No. 218, supra (emphasis added). The Order also states that it is "effective immediately." On the whole, this language seems to us to be forward-looking.

Second, what we understand to be the primary purpos e of this Order and others like it would not be serve d by retroactive application. Orders of this type are ba sed on the view that requiring state prisoners to file petitio ns for discretionary review in order to pave the way for f ederal habeas petitions does little good (because so few p etitions for discretionary review are granted) but imposes a burden on overworked state supreme courts and produces pointless delay. See O'Sullivan, 526 U.S. at 849 (S outer, J., concurring; id. at 863 (Breyer, J., dissenting). In his dissent in O'Sullivan, Justice Breyer cited the low percent age of petitions granted by several state supreme courts. Id. at 863 (Breyer, J., dissenting). He then observed:

On the majority's view, these courts must no w consider additional petitions for review of criminal cases, which petitions will contain many claims raised on ly to preserve a right to pursue those claims in f ederal habeas proceedings. The result will add to t he burdens of already overburdened state courts and del ay further a criminal process that is often criticized for too much delay.

Id. at 863. He expressed "optimism," however, becau se of the suggestion in Justice Souter's concurrence that a state

11could, if it desired, eliminate the requirement of having

such claims raised in petitions for discretionary r eview to the state's highest court. Id. at 864. The interest s cited by Justice Breyer -- relieving the burden on state sup reme courts and preventing delay -- would obviously not be served by retroactive application of Order 218. See Mattis v. Vaughn, 128 F. Supp. 2d 249, 262 (E.D. Pa. 2001). A ny petitions filed prior to that Order solely for the purpose of satisfying the federal exhaustion requirement still had to be passed upon by the state supreme court, and federal habeas review was still delayed until that was done

.

Third, we find it difficult to see how the federal habeas statute could accommodate retroactive application. We must not lose sight of the fact that the question b efore us is whether or not the filing of a petition for allo wance of appeal was an "available" state remedy in 1991. 28 U.S.C. S 2254(b)(l)(A). Whether a remedy was or was not "a vailable" appears to us to be a question of objective histori cal fact. While a state may, of course, prospectively change the remedies that are available under state law, if a r emedy was available or unavailable at some time in the past, it is difficult to see how that fact can be retroactively altered. Our court has previously held that a petition for a llowance of appeal is an available remedy in Pennsylvania, a nd we
have held that claims were not exhausted or were procedurally defaulted because such review was not sought See e.g., Evans v. Court of Common Pleas , 959 F.2d 1227, 1230 (3d Cir. 1992); Caswell, 953 F.2d at 860; Beat ty v. Patton, 700 F.2d 110, 111-12 (3d Cir. 1983). Whatev er prospective effect Order 218 has, we do not think i t in effect overrules those decisions as they pertain to cases that had passed that procedural juncture prior to the Order.

For all these reasons, we hold that Order 218 does not apply in cases in which the time to petition for re view by the state supreme court expired prior to the date o f the order. For Wenger, this means that his ineffective assistance of counsel claims are procedurally defau lted and, because he has not argued any ground for excus ing that default, it would appear that federal habeas r eview of
these claims is barred.

12Wenger maintains, however, that the Commonwealth ha s

waived this default. In making this argument, Wenge r relies on Hull v. Kyler, 190 F.3d 88 (3d Cir. 1999), but w e find that case to be inapposite. In Hull, the prisoner r aised the
relevant claim in the Court of Common Pleas and the Superior Court, but his attorney failed to file a t imely petition for allowance of appeal to the state supre me court. 190 F.3d at 98. Subsequently, however, in a collate ral proceeding, "Hull sought, and received, from the . . . Court of Common Pleas leave to file a petition for allowa nce of appeal nunc pro tunc to the state supreme court" fr om the prior Superior Court decision that had rejected the claim on the merits. Id. (emphasis in original)."The leave w as granted on the basis of his post-conviction counsel 's ineffectiveness in failing to timely file such a pe tition originally or to notify Hull of this failure in a t imely fashion." Id. The order granting this relief was ne ver reversed by the state courts; Hull filed a nunc pro tunc petition for allowance of appeal; and the state sup reme court denied that petition without comment. Id . We held that the granting of leave to file the petition nun c pro tunc constituted a waiver by the state courts of the pri or procedural default. Id. at 98-99.

Wenger argues that, if he procedurally defaulted hi s ineffective assistance of counsel claims when he fa iled to file a timely petition for allowance of appeal from the 1991 decision of the Superior Court, the Court of Common Pleas waived that default in his subsequent PCRA proceedi ng when the court dismissed that petition, not on the ground
that the ineffective assistance claims had been def aulted or waived, but on the ground that they had been "previ ously litigated." Appellant's Br. at 18. We reject this a rgument.

Under the PCRA, a petitioner must prove that an "allegation of error has not been previously litiga ted or waived." 42 Pa. Cons. Stat. Ann. S 9543(a)(3). An a llegation is considered to have been "previously litigated" i f "the highest appellate court in which the petitioner cou ld have had review as a matter of right has ruled on the me rits of the issue" or the allegation "has been raised and d ecided in a proceeding collaterally attacking the conviction or sentence." 42 Pa. Cons. Stat. Ann. SS 9544(a)(2)and (3).

13Thus, the holding of the Court of Common Pleas in

Wenger's PCRA proceeding that his ineffective assis tance of counsel claims had been "previously litigated" mere ly signified that the Superior Court ("the highest app ellate court in which the petitioner could have had review as a matter of right") had ruled on the merits of those claims (as it indisputably had in the earlier appeal in the PC HA proceeding) and/or that the claims had "been raised and decided in a proceeding collaterally attacking the conviction or sentence" (which also plainly occurred in the ea rlier, PCHA proceeding). Although the Court of Common Plea s did not also say that the claims had been "waived," the court did not say that they had not been"waived," a nd in any event, the question whether the claims were"wai ved" within the meaning of the PCRA is analytically dist inct from the question whether they were exhausted or procedu rally defaulted for federal habeas purposes. In Hull , as we have noted, the procedural default was found to have bee n waived because a state court in effect granted him leave to cure his prior default, and he did so. Nothing comp arable happened here.

We therefore hold that Wenger's ineffective assista nce of counsel claims, although exhausted, have been procedurally defaulted and may not be raised in thi sS 2254 proceeding.

III.

The final question that we must consider is whether we may affirm the dismissal of Wenger's Due Process/Ei ghth Amendment claim. As noted, the District Court dismi ssed Wenger's entire petition, including this claim, on the ground that it was "mixed," but this was incorrect. As we
said in Toulson:

A petition containing unexhausted but proced urally
barred claims in addition to exhausted claim s, is not a mixed petition requiring dismissal under Ros e . Although the unexhausted claims may not have been presented to the highest state court, exhaus tion is not possible because the state court would find the claims procedurally defaulted.

14The district court may not go to the merits of the

barred claims, but must decide the merits of the claims

that are exhausted and not barred.

987 F.2d at 987 (internal citations omitted).

The Commonwealth contends, however, that Wenger's Due Process/Eighth Amendment claim was never fairly presented to the state courts because it was not ra ised on direct appeal or in the PCHA proceeding and was not presented to the Court of Common Pleas in an adequa te way in the PCRA proceeding. We cannot agree.

We interpret the decision of the Court of Common Pl eas in the PCRA proceeding as rejecting this claim on t he merits.2 The claim was next raised on appeal to the Superior Court, and the Superior Court affirmed without addressing this
issue. We must therefore assume that the decision o f the Superior Court rests on the same ground as that of the Court of Common Pleas. See Ylst v. Nunnemaker , 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplain ed orders upholding that judgment or rejecting the same claim rest upon the same ground.") Finally, the issue was rais ed in a timely petition for allowance of appeal to the stat e supreme court, and that court denied review without comment . As a result, the claim was exhausted. See Ylst, 501 U.S. at 801 ("If the last state court to be presented with a pa rticular federal claim reaches the merits, it removes any ba r to federal-court review that might otherwise have been available.").

We therefore hold that this claim is cognizable und er S 2254 and should be considered by the District Cou rt on remand. Needless to say, we express no view regardi ng the
merits of the claim. We thus reverse the decision o f the District Court dismissing Wenger's petition in its entirety and remand for further proceedings consistent with this opinion.

___________________________________________________ ______________

2. As noted, after rejecting Wenger's ineffective a ssistance claims as "nothing more than a reworked version of a previous ly litigated claim," the court addressed what we understood as the equiv alent of the Due Process/Eighth Amendment claim as an "[a]dditional[ ]" claim. App. 66.

15A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

16