2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-7-2001

Wenger v. Frank

Precedential or Non-Precedential:

Docket 99-3337

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Recommended Citation

"Wenger v. Frank" (2001). 2001 Decisions. Paper 206.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/206
Filed 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 District Judge for the 

Northern District of California, sitting by designation. 
 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 dismissing 

a petition for a writ of habeas corpus filed under 28 U.S.C. 

S 2254. The District Court dismissed the petition under 

Rose v. Lundy, 455 U.S. 509 (1982), holding that the 

petition, which advanced three claims, contained two that 

were unexhausted and was therefore a "mixed petition." On 

appeal, Wenger contends that the supposedly unexhausted 

claims would no longer be entertained by the Pennsylvania 

courts. Wenger argues that these claims, although never 

fairly presented to the Supreme Court of Pennsylvania, 

should be regarded as exhausted by virtue of a general 

order issued by the Pennsylvania Supreme Court in May 

2000. See In re: Exhaustion of State Remedies in Criminal 

and Post-Conviction Relief Cases, No. 218 Judicial 

Administration Docket No. 1 (Pa. May 9, 2000). Wenger also 

maintains that, even if these claims were procedurally 

defaulted, the procedural default has been waived. In 

addition, he contends that his third claim has clearly been 

 2 
exhausted, has not been procedurally defaulted, and

consequently should have been entertained on the merits 

by the District Court. For the reasons explained below, we 

reverse the decision of the District Court and remand for 

further proceedings. 

I. 

In October 1984, Robert Wenger was arrested and 

charged in the Court of Common Pleas of Adams County 

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. Cons. 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 Commonwealth 

later negotiated a plea agreement under which the 

Commonwealth did not seek the death penalty and Wenger 

pled guilty to criminal homicide generally. After Wenger 

pled, a degree-of-guilt hearing was held in May 1985, and 

Wenger was found guilty of murder of the first degree. As 

required by Pennsylvania law, see 18 Pa. Cons. Stat. Ann. 

S 1102(a); 42 Pa. Cons. Stat. Ann. S 9756(c), Wenger was 

sentenced in November 1985 to a term of life imprisonment 

without parole. 

Wenger appealed to the Superior Court. The sole issue 

raised on appeal concerned the sufficiency of the evidence 

to support the trial court's finding that he was guilty of 

murder of the first degree. The Superior Court affirmed, 

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 renamed 

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 advising 

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 concerning 

withdrawal of his guilty plea, and (3) that his trial counsel 

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

allowance of appeal to the Pennsylvania Supreme Court. 

The Court of Common Pleas held a hearing and received 

testimony from Wenger, his father, mother, and brother, 

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 sentence, 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, and 

therefore Wenger understood that he would be sentenced 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 attorney 

move to do so. Finally, the court denied relief on Wenger's 

third claim because Wenger's counsel had taken a direct 

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 dismissed 

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 Wenger 

failed to file a timely petition for allowance of appeal 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 denied 

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 petition, as 

ultimately amended, claimed that Wenger's conviction 

resulted from a guilty plea that had been unlawfully 

induced, that an unlawful sentence of life imprisonment 

without parole had been imposed, and that Wenger had 

been denied the effective assistance of counsel. In a 

memorandum submitted with this motion, Wenger 

discussed various theories supporting his claim that his 

sentence was illegal. Among other things, Wenger raised the 

following question: 

 4 
 Are legal definitions and common understandings of 

 the terms "life imprisonment" and "life imprisonment 

 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 Amendment? 

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 and 

issued an opinion. The court noted that one of Wenger's 

contentions in his first petition for post-conviction relief 

was that "plea counsel erroneously told and led[him] to 

believe that his exposure was ten years at most." App. 66. 

The court noted that it had previously rejected this 

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. Id. The 

court then noted that the current petition also alleged "that 

counsel was ineffective for failing to advise [Wenger] that 

life meant life without parole," and the court observed that 

this "assertion is nothing more than a reworked version of 

a previously litigated claim" and did not justify either a 

hearing or relief. Id. 

The court then added: 

 Additionally, defendant has sought permission to 

 amend his petition in order to attack the legality of his 

 sentence. Although we are impressed with defendant's 

 brief, we decide the challenge does not entitle him to 

 relief. A sentence of life imprisonment is legal and 

 violates neither equal protection nor the prohibition 

 against cruel and unusual punishment. 

Id. 

Wenger appealed this decision to the Superior Court and 

raised two arguments. He contended that "plea counsel's 

ineffective assistance violated rights guaranteed by the 

Sixth and Fourteenth Amendments to the United States 

 5 
Constitution," and he asserted the Due Process/Eighth 

Amendment argument. App. 70. 

The Superior Court affirmed. The court wrote that it 

"need not reach and discuss the issues posited on this 

second appeal for ineffectiveness relief " because, as the 

court below had put it, the current appeal was " `nothing 

more than a reworked version of a previously litigated 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 conclude 

that the only issues that Wenger now seeks to present 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 was the 

Due Process/Eighth Amendment argument. Leave to appeal 

was denied in May 1998. 

Wenger then filed a petition for a writ of habeas corpus 

under 28 U.S.C. S 2254 in the United States District Court 

for the Middle District of Pennsylvania. The petition raised 

the following three claims: 

 1. Whether petitioner was denied his right to effective 

 assistance of counsel based on counsel's erroneous 

 advice that even if a life term was imposed, petitioner 

 would only be required to serve a seven to ten year 

 term of imprisonment before parole? 

 2. Whether petitioner was denied effective assistance 

 of counsel when plea counsel failed to confer 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 imprisonment" and 

 "life imprisonment without parole" are 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 Amendment? 

 6 
The 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 fairly 

presented to the Pennsylvania Supreme Court and were 

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 with 

only the third, exhausted claim. The court rejected that 

request, however, because Wenger had not filed a motion to 

amend or resubmit his habeas corpus petition. The court 

therefore dismissed the entire petition, and Wenger took the 

present appeal. 

II. 

We first consider the question whether the two ineffective 

assistance of counsel claims presented in Wenger's federal 

habeas petition remain unexhausted. With two exceptions 

not applicable here, 28 U.S.C. S 2254(b)(1) provides that 

"[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 . . . the 

applicant has exhausted the remedies available in the 

courts of the State."1 Under 28 U.S.C. S 2254(c), such a 

petitioner "shall not be deemed to have exhausted the 

remedies available in the courts of the State . . . if he has 

the right under the law of the State to raise, by any 

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 prisoners 

"invoke extraordinary remedies," "state prisoners must give 

the state courts one full opportunity to resolve any 

constitutional issues by invoking one complete round of the 

State's established appellate review process." Id. at 844-45. 

This means, the Court explained, that state prisoners must 

"file petitions for discretionary review when that review is 

_________________________________________________________________ 

1. Because Wenger's federal petition was filed after the effective date of 

the Antiterrorism and Effective Death Penalty Act, the version of S 2254 

as amended by that Act applies. 

 7 
part of the ordinary appellate review procedure in the 

State." Id. at 847. The Court further noted that, in 

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 exhausted 

those remedies, i.e., whether he has fairly presented his 

claims to the state courts." Id. at 848. If a claim has not 

been fairly presented to the state courts but further statecourt review is clearly foreclosed under state law,

exhaustion is excused on the ground of futility. See, 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). Under 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 excusing the 

procedural default. Procedural default may be excused 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 Common 

Pleas and the Superior Court in his first state petition for 

collateral review, and both of those courts entertained (and 

rejected) those claims on the merits. However, Wenger did 

not "fairly" present those claims to the Pennsylvania 

Supreme Court, because he did not file a timely petition 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. Under 

those circumstances, the claims were not fairly presented 

to the state supreme court. Caswell v. Ryan, 953 F.2d 853, 

858-60 (3d Cir. 1992). It is also apparent that Wenger 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 petition 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 Wenger to 

present these claims to the Pennsylvania Supreme Court -- 

that is to say, if the filing of a petition for allowance of 

 8 
appeal was "part of the ordinary appellate review procedure 

in the state" -- the claims were not properly exhausted. It 

is apparent, however, that the Pennsylvania courts would 

no longer entertain those claims, see Doctor v. Walters, 96 

F.3d 675, 681-82 (3d Cir. 1996), and neither Wenger nor 

the Commonwealth suggests otherwise. Indeed, the Court 

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 collateral 

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 circumstances, 

we must decide whether the filing of a petition for

discretionary review by the Pennsylvania Supreme Court 

was "part of the ordinary appellate review procedure 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 ordinary 

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 hereby 

 recognize that the Superior Court of Pennsylvania 

 reviews criminal as well as civil appeals. Further, 

 review of a final order of the Superior Court is not a 

 matter of right, but of sound judicial discretion, and an 

 appeal to this Court will only be allowed when there 

 are special and important reasons therefor. Pa.R.A.P. 

 1114. Further, we hereby recognize that criminal and 

 post-conviction relief litigants have petitioned and do 

 routinely petition this Court for allowance of appeal 

 upon the Superior Court's denial of relief in order to 

 exhaust all available state remedies for purposes of 

 federal habeas corpus relief. 

 In recognition of the above, we hereby declare that in 

 all appeals from criminal convictions or post-conviction 

 relief matters, a litigant shall not be required to 

 petition for rehearing or allowance of appeal following 

 an adverse decision by the Superior Court in order to 

 be deemed to have exhausted all available state 

 remedies respecting a claim of error. When a claim has 

 9 
 been presented to the Superior Court, or to the 

 Supreme Court of Pennsylvania, and relief has 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 Justice 

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 Court] should 

construe the exhaustion doctrine to force a State, in effect, 

to rule on discretionary review applications when the State 

has made it plain that it does not wish to require such 

applications before its petitioners may seek federal habeas 

relief." 526 U.S. at 849 (Souter, J., concurring). Justice 

Souter went on to note the example of an order issued 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 No. 218 

to mean that he exhausted his ineffective assistance of 

counsel claims when he raised those claims in the Court of 

Common Pleas and the Superior Court in his first petition 

for state collateral review and that his failure fairly to 

present those claims to the Pennsylvania Supreme Court is 

immaterial for exhaustion purposes. 

After hearing oral argument in this case, we requested 

the parties to provide supplemental submissions addressing 

the question whether Order 218 "applies to a case in which 

the time for filing a petition for discretionary review expired 

prior to the date of the order." We also invited the Attorney 

General of Pennsylvania to provide an amicus submission 

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 state 

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 court 

to address the broader question whether the filing of a 

 10 
petition for discretionary review with the Pennsylvania 

Supreme Court is now "part of the ordinary appellate 

review procedure in the state," we find it unnecessary to 

reach that issue here. In this case, we find it sufficient 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, although 

not in itself conclusive, suggests that the Order was 

intended to be prospective only. The Order states that the 

court "hereby declare[s]" that, in appeals from criminal 

convictions or post-conviction relief matters, "a litigant shall 

not be required to petition for rehearing or allowance 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 purpose 

of this Order and others like it would not be served by 

retroactive application. Orders of this type are based on the 

view that requiring state prisoners to file petitions for 

discretionary review in order to pave the way for federal 

habeas petitions does little good (because so few petitions 

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 (Souter, J., 

concurring; id. at 863 (Breyer, J., dissenting). In his dissent 

in O'Sullivan, Justice Breyer cited the low percentage 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 now consider 

 additional petitions for review of criminal cases, which 

 petitions will contain many claims raised only to 

 preserve a right to pursue those claims in federal 

 habeas proceedings. The result will add to the burdens 

 of already overburdened state courts and delay further 

 a criminal process that is often criticized for too much 

 delay. 

Id. at 863. He expressed "optimism," however, because of 

the suggestion in Justice Souter's concurrence that a state 

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

such claims raised in petitions for discretionary review to 

the state's highest court. Id. at 864. The interests cited by 

Justice Breyer -- relieving the burden on state supreme 

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). Any 

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 before us 

is whether or not the filing of a petition for allowance 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 "available" 

appears to us to be a question of objective historical fact. 

While a state may, of course, prospectively change the 

remedies that are available under state law, if a remedy 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 allowance 

of appeal is an available remedy in Pennsylvania, and 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; Beatty v. 

Patton, 700 F.2d 110, 111-12 (3d Cir. 1983). Whatever 

prospective effect Order 218 has, we do not think it 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 review by 

the state supreme court expired prior to the date of the 

order. For Wenger, this means that his ineffective 

assistance of counsel claims are procedurally defaulted 

and, because he has not argued any ground for excusing 

that default, it would appear that federal habeas review of 

these claims is barred. 

 12 
Wenger maintains, however, that the Commonwealth has 

waived this default. In making this argument, Wenger relies 

on Hull v. Kyler, 190 F.3d 88 (3d Cir. 1999), but we find 

that case to be inapposite. In Hull, the prisoner raised the 

relevant claim in the Court of Common Pleas and the

Superior Court, but his attorney failed to file a timely 

petition for allowance of appeal to the state supreme court. 

190 F.3d at 98. Subsequently, however, in a collateral 

proceeding, "Hull sought, and received, from the . . . Court 

of Common Pleas leave to file a petition for allowance of 

appeal nunc pro tunc to the state supreme court" from the 

prior Superior Court decision that had rejected the claim on 

the merits. Id. (emphasis in original)."The leave was 

granted on the basis of his post-conviction counsel's 

ineffectiveness in failing to timely file such a petition 

originally or to notify Hull of this failure in a timely 

fashion." Id. The order granting this relief was never 

reversed by the state courts; Hull filed a nunc pro tunc 

petition for allowance of appeal; and the state supreme 

court denied that petition without comment. Id . We held 

that the granting of leave to file the petition nunc pro tunc 

constituted a waiver by the state courts of the prior 

procedural default. Id. at 98-99. 

Wenger argues that, if he procedurally defaulted his 

ineffective assistance of counsel claims when he failed 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 proceeding 

when the court dismissed that petition, not on the ground 

that the ineffective assistance claims had been defaulted or 

waived, but on the ground that they had been "previously 

litigated." Appellant's Br. at 18. We reject this argument. 

Under the PCRA, a petitioner must prove that an 

"allegation of error has not been previously litigated or 

waived." 42 Pa. Cons. Stat. Ann. S 9543(a)(3). An allegation 

is considered to have been "previously litigated" if "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 the allegation "has been raised and decided in 

a proceeding collaterally attacking the conviction or 

sentence." 42 Pa. Cons. Stat. Ann. SS 9544(a)(2)and (3). 

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

Wenger's PCRA proceeding that his ineffective assistance of 

counsel claims had been "previously litigated" merely 

signified that the Superior Court ("the highest appellate 

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 PCHA 

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 earlier, 

PCHA proceeding). Although the Court of Common Pleas 

did not also say that the claims had been "waived," the 

court did not say that they had not been"waived," and in 

any event, the question whether the claims were"waived" 

within the meaning of the PCRA is analytically distinct from 

the question whether they were exhausted or procedurally 

defaulted for federal habeas purposes. In Hull , as we have 

noted, the procedural default was found to have been 

waived because a state court in effect granted him leave to 

cure his prior default, and he did so. Nothing comparable 

happened here. 

We therefore hold that Wenger's ineffective assistance of 

counsel claims, although exhausted, have been 

procedurally defaulted and may not be raised in thisS 2254 

proceeding. 

III. 

The final question that we must consider is whether we 

may affirm the dismissal of Wenger's Due Process/Eighth 

Amendment claim. As noted, the District Court dismissed 

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 procedurally 

 barred claims in addition to exhausted claims, is not a 

 mixed petition requiring dismissal under Rose . 

 Although the unexhausted claims may not have been 

 presented to the highest state court, exhaustion is not 

 possible because the state court would find the claims 

 procedurally defaulted. 

 14 
 The 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 raised on 

direct appeal or in the PCHA proceeding and was not

presented to the Court of Common Pleas in an adequate 

way in the PCRA proceeding. We cannot agree. 

We interpret the decision of the Court of Common Pleas 

in the PCRA proceeding as rejecting this claim on the 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 of 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 unexplained orders 

upholding that judgment or rejecting the same claim rest 

upon the same ground.") Finally, the issue was raised in a 

timely petition for allowance of appeal to the state 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 particular 

federal claim reaches the merits, it removes any bar to 

federal-court review that might otherwise have been

available."). 

We therefore hold that this claim is cognizable under 

S 2254 and should be considered by the District Court on 

remand. Needless to say, we express no view regarding the 

merits of the claim. We thus reverse the decision of 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 assistance claims as 

"nothing more than a reworked version of a previously litigated claim," 

the court addressed what we understood as the equivalent of the Due 

Process/Eighth Amendment claim as an "[a]dditional[ ]" claim. App. 66. 

 15 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 16