concurring.
I agree that Doctor has failed to exhaust his state created remedies and that we should affirm the judgment of the district court dismissing Doctor’s petition. But I write separately because I believe the Pennsylvania state courts should be given the opportunity to decide whether the recent changes in the fugitive forfeiture rule should be applied retroactively to Doctor. I recognize that Pennsylvania courts have held that a new rule of law to which courts give retroactive effect, will not be applied on collateral review unless that decision was handed down during the pendency of an appellant’s direct appeal. Commonwealth v. Gillespie, 512 Pa. 349, 516 A.2d 1180, 1183 (1986). But in light of the drastic change in Pennsylvania’s law regarding appeals by escapees, it is possible the state courts may relax the retroactivity rule in a case like this one. Only when state law “clearly foreelose[s] state court review of [the] unexhausted claims,” is a petitioner’s failure to exhaust excused. Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.1993). If a 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 rather than hold the claims barred, even if it is unlikely that the state court would consider them. Id. at 988. This is premised on firmly entrenched principles of comity. Accordingly, I do not think it would be futile to require Doctor to return to state court.
In addition, since Doctor has not yet filed a petition asserting only exhausted claims, I do not think it is necessary to reach the procedural default issue. But in the event that Doctor resubmits his exhausted claims, it would appear that under Feigley v. Fulcomer, 833 F.2d 29 (3d Cir.1987), the fugitive forfeiture rule would bar federal habeas review of Doctor’s claims. As the court notes, a petitioner is not entitled to federal review of procedurally defaulted claims if the state-law ground is both “independent” of the merits of the federal claim and an “adequate” basis for the court’s decision. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). Waiver of claims in state court can be overlooked by federal courts only if the petitioner can demonstrate “cause” for non-compliance with the procedural rule and “prejudice” resulting from the alleged constitutional violation, or can demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Id. As noted, in Feigley we did not explicitly address whether Pennsylvania’s fugitive forfeiture rule is an “independent and adequate” state procedural rule mandating default judgment against the escapee. But we could not have reached the issue of “cause and prejudice” without first implicitly determining the rule was an independent and adequate basis for the court’s decision. Consequently, it would appear the fugitive forfeiture rule would bar review of Doctor’s exhausted claims.
Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS and McKEE, Circuit Judges, and O’NEILL*, District Judge.SUR PETITION FOR REHEARING
Nov. 4, 1996
The petition for rehearing filed by appellant in the above-entitled case having been *687submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular service not having voted for rehearing, the petition for rehearing by the panel and the Court in banc, is denied.