                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             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Precedential or Non-Precedential: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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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 post-
conviction 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 state-
court 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

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