dissenting:
I have no quarrel with the majority opinion’s thorough analysis of federal law governing exhaustion, futility and cause and prejudice or with their analysis concerning Lines’s right to further review of his constitutional claims under Pennsylvania procedural law. It is my view, however, that these analyses are largely irrelevant in the present case. By reason of the peculiar state of Pennsylvania’s fugitive forfeiture rule both at the time Lines committed his crime and at the time he sought review of his conviction (i) exhaustion was excused from the outset because state law foreclosed review of any of his claims and (ii) flight did not constitute a procedural default requiring a cause and prejudice review. The reasoning of Doctor v. Walters, 96 F.3d 675 (3d Cir.1996) compels this result.
The majority opinion sets forth the governing law:
Petitioners who have not fairly presented their claims to the highest state court have failed to exhaust those claims. O’Sullivan v. Boerckel. If, however, state procedural rules bar a petitioner from seeking further relief in state courts, “the exhaustion requirement is satisfied because there is ‘an absence of available State corrective process.’ ” 28 U.S.C. § 2254(b). McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir.1999). Even so, this does not mean that a federal court may, without more, proceed to the merits. Rather, claims deemed exhausted because of a state procedural bar are procedurally defaulted, and federal courts may not consider their merits unless the petitioner “establishes ‘cause and prejudice’ or a ‘fundamental miscarriage of justice’ to excuse the default.” Id. See also Coleman, 501 U.S. at 731, 111 S.Ct. 2546.
Slip Op. at 159-60. (Footnote omitted.)
Lines became a fugitive on October 10, 1986 and was convicted in absentia. He was apprehended on December 21, 1986, pursued post-verdict motions and was sentenced to life imprisonment on July 19, 1991. Thereafter, as recited in the majority opinion, he pursued his appeal to the Pennsylvania Superior Court, his Petition for Allowance of Appeal to the Pennsylvania Supreme Court (denied October 28, 1992), his PCRA petition (filed March 31, 1993) and unsuccessful appeals from denial of the PCRA petition.
During and after the time frame encompassed by these proceedings Pennsylvania’s fugitive forfeiture rule, as interpreted by Pennsylvania’s Supreme Court, went through a series of transformations. The applicable procedural rule, Pa. R.App. P.1972(6), provides in relevant part that “any party may move: ... (6)[t]o continue generally or to quash because the appellant is a fugitive.... ” In Doctor this court had occasion to determine the manner in which the Pennsylvania Supreme *170Court construed this rule as of June 24, 1986, the date when Doctor had fled from his criminal trial. Lines fled on October 10 of the same year, and there is nothing to suggest that Pennsylvania’s law on the subject changed during the less than four months interval between his and Doctor’s flights. The state of the law at relevant times was critical in Doctor, and for the same reasons it is critical in the present case.
Doctor had submitted a mixed habeas corpus petition, containing exhausted and unexhausted claims. Following the dictate of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), this court affirmed the district Court’s dismissal of the petition. The district court, however, had dismissed the petition not only on failure to exhaust grounds. It also found that the Pennsylvania courts’ refusal to consider the merits of Doctor’s direct appeals based on the fugitive forfeiture rule constituted application of an independent and adequate state procedural rule. Doctor’s failure to comply with that rule constituted a procedural default, requiring dismissal of the habeas petition since he had not shown cause and prejudice. Anticipating that Doctor might file a new petition containing only exhausted claims and that he would again be faced with the procedural default contention, this court addressed the merits of that defense.
A habeas petitioner is entitled to federal review of a procedurally defaulted claim only if he can demonstrate cause for the procedural default and prejudice resulting therefrom. Doctor, 96 F.3d at 683. However, “[a] state rale provides an independent and adequate basis for precluding federal review of a state prisoner’s habeas claim only if: (1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner’s claims on the merits; and (3) the state courts’ refusal in this instance is consistent with other decisions.” Id. at 683-684.
Doctor analyzed two pre-1986 Pennsylvania Supreme Court decisions applying the fugitive forfeiture rule. Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975) (There was no basis to dismiss a formerly fugitive defendant’s appeal because he was in custody when the case was actually argued and would therefore be subject to the jurisdiction of the court and thus responsive to any judgment entered) and Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984) (Petition of defendant who absconded during appeal to reinstate appeal after recapture denied). Doctor also noted that after Galloway and prior to 1986 Pennsylvania’s intermediate courts consistently recognized their discretion to hear a properly filed appeal as long as the criminal defendant had returned to the jurisdiction before the appeal was dismissed.
Based on this review of the state of Pennsylvania law as it existed in 1986, this court held that as of that date “it was not 'firmly established’ that Pennsylvania courts lacked the discretion to hear an appeal first filed after custody had been established,” and consequently “the state courts in this case did not rely on an ‘adequate’ procedural rale to deny petitioner a review of his appeal on the merits.” Doctor, 96 F.3d at 686. In these circumstances Doctor was not required to establish cause and prejudice in the event he filed a habeas petition containing only exhausted claims.
In 1992 the Pennsylvania Supreme Court firmly closed the door to any appeals by a fugitive defendant, stating:
A defendant’s voluntary escape acts as a per se forfeiture of his rights of appeal, where the defendant is a fugitive at any time after post-trial proceedings commence. Such a forfeiture is irrevocable and continues despite the defendant’s capture or voluntary return to custody. Thus, by choosing to flee from justice, appellant has forever forfeited his right to appeal.
*171Commonwealth v. Jones, 530 Pa. 536, 541, 610 A.2d 439, 441 (1992). This was the state of the law when the Superior Court held that the trial court erred in failing to quash Lines’s post-verdict motions and that Lines had “forever forfeited his right to appeal by electing to become' a fugitive after post-trial procedures have begun.” Commonwealth v. Lines, 415 Pa.Super. 438, 443, 609 A.2d 832, 834, allocatur denied, 532 Pa. 662, 616 A.2d 983 (1992). It was the state of the law when the Supreme Court denied Lines’s Petition for Allowance of Appeal.
Subsequently the Pennsylvania Supreme Court again revisited the fugitive forfeiture rule, holding that the sanction for absconding must be a reasonable response to a defendant’s flight, and there must be some rational link between the flight and the appellate process to justify imposing a forfeiture on a defendant. In re J.J., 540 Pa. 274, 656 A.2d 1355 (1995); Commonwealth v. Huff, 540 Pa. 535, 658 A.2d 1340 (1995). Pennsylvania’s rule limiting retroactive application of new rules of law to cases pending at the time the new rule is announced precluded and still precludes Lines from taking advantage of this change in the law.
Whether Lines is confronted with a procedural default and must establish cause and prejudice must be determined on the basis of Pennsylvania’s fugitive forfeiture rule as it existed in 1986 when he became a fugitive. As stated in Doctor, “We must decide whether[the fugitive forfeiture rule] was firmly established and regularly applied, not in 1993 when the Supreme Court relied on it, but rather as of the date of the waiver that allegedly occurred when Doctor escaped in 1986” at 684. As recited above, in 1986 when Lines escaped the fugitive forfeiture rule was not firmly established and regularly applied. Consequently, his petition is not subject to a procedural default defense based on the fugitive forfeiture rule and he is not required to establish cause and prejudice.
On the other hand, when Lines sought relief from his conviction in the state courts Pennsylvania law had changed. By that time the fugitive forfeiture rule, as interpreted by the Supreme Court, had become an impenetrable barrier to relief of any sort in the state courts. Not only were an appeal and a PCRA petition futile, there was a total absence of available state corrective process of any sort.1 In these circumstances exhaustion is excused and Lines must be permitted to assert in a habeas petition both the grounds he raised in his abortive appeal to the Superior Court and the ineffective assistance of counsel claim based on the failure of trial counsel to move for severance which he did not raise in any Pennsylvania court.
The same impenetrable barrier prevailed when Doctor sought relief in the state courts. In his case, however, this court detected a small chink in this barrier, namely, an appeal or a PCRA petition in which the once fugitive petitioner seeking relief from a waiver “can demonstrate a ‘miscarriage of justice, which no civilized society can tolerate.’ ” Doctor, 96 F.3d at 682. This court rejected Doctor’s futility contention stating “[w]e cannot conclude that there is no chance that the Pennsylvania courts would find a miscarriage of justice sufficient to override the waiver requirements and permit review under PCRA.” Id. at 683. Doctor contended that lack of a trial even in absentia violated his Sixth Amendment rights. This court opined that the Pennsylvania courts might consider this a miscarriage of justice claim *172which would override a fugitive forfeiture waiver. It would follow that had this court not found that Doctor’s unexhausted claim asserted miscarriage of justice, it would have concluded that it would have been futile to require him to return to the Pennsylvania courts and exhaustion would have been excused.
In the present case Lines does not assert any claims which might be characterized as a “miscarriage of justice, which no civilized society can tolerate.” Thus the reasoning of Doctor compels the conclusion that exhaustion was excused in the present case because it would have been futile to require that Lines exhaust state remedies.2
It is my view that it is unnecessary to determine the extent to which Lines raised his various claims in one or another of his abortive state court proceedings. From the outset under the Pennsylvania Supreme Court’s then prevailing application of the fugitive forfeiture rule, Lines had no right to appeal or to post conviction relief of any sort. The fact that he did seek state court relief is of no moment. It was all an exercise in futility which he had no obligation to pursue. In these circumstances he should be permitted to assert in the district court all the claims set forth in his § 2254 petition.
For the reasons set forth above I dissent from the majority opinion.
. See 28 U.S.C. § 2254(b)(1):
(b)(1) 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— (A) the applicant has exhausted the remedies available in courts of the State; or (B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(Emphasis added.)
. In Doctor, the petitioner had in fact sought to present his other federal claims to the Pennsylvania Superior and Supreme Courts, only to have them dismissed on the basis of the fugitive forfeiture rule. Thus there was no need for this court to consider whether failure to have raised those non-miscarriage of justice claims in the state courts would have been excused as futile. After the Pennsylvania Supreme Court changed its interpretation of the fugitive forfeiture rule to make its application discretionary, failure of a fugitive to exhaust his state remedies could no longer be excused on futility grounds.