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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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, 782 A.2d 517 (Pa. 2001), and reinstated his appeal to the Pennsylvania
Supreme Court, see, e.g., Commonwealth. v. Lantzy, 736 A.2d 564, 571-572 (Pa.1999);
Boofer v. Lotz, 797 A.2d 1047, 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, 113 S.Ct. 1071 (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, 953 F.2d 853 (3d Cir.
1992)
For these reasons, the order of the District Court is affirmed.
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