                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-29-2008

Kindler v. Horn
Precedential or Non-Precedential: Precedential

Docket No. 03-9010




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Kindler v. Horn" (2008). 2008 Decisions. Paper 433.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/433


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                No: 03-9010 and 03-9011

                                  JOSEPH J. KINDLER

                                             v.

         MARTIN HORN, Commissioner, Pennsylvania Department of Corrections;
            *DAVID DIGUGLIELMO, Superintendent of the State Correctional
          Institution at Graterford; JOSEPH P. MAZURKIEWICZ, Superintendent
                       of the State Correctional Institution at Rockview,

                                            Appellants

                       (*Amended - See Clerk's Order dated 1/6/05)


                                Argued October 15, 2007

           BEFORE: McKEE, FUENTES, and STAPLETON Circuit Judges

                           ORDER AMENDING OPINION

      IT IS HEREBY ORDERED that the Order Amending Opinion is this matter,

entered September 24, 2008, is vacated. It is further ORDERED that the Slip Opinion in

this case filed on September 3, 2008, be amended as follows:

      The second paragraph on page 15, which reads: “Next, the district court
      relied in part on Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996), in rejecting
      the Commonwealth’s claim of procedural default. There, we had held that
      Pennsylvania’s fugitive forfeiture rule was not firmly established when
      Kindler escaped. Accordingly, “the fugitive forfeiture rule . . . [did] not
      provide an independent and adequate basis to preclude federal review of
      [Kindler’s] habeas claims. . .”. Kindler v. Horn, 291 F. Supp. 2d at 343.”
      should be changed to read as follows: “Next, the district court relied in part
      on Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996), in rejecting the
      Commonwealth’s claim of procedural default. There, we had held that
      Pennsylvania’s fugitive forfeiture rule was not firmly established when
      Doctor, the habeas petitioner, escaped in 1986. Accordingly, the district
      court held that “the fugitive forfeiture rule . . . [did] not provide an
      independent and adequate basis to preclude federal review of [Kindler’s]
      habeas claims. . . .” Kindler v. Horn, 291 F. Supp. 2d at 343.

                                        BY THE COURT,


                                        /s/ Theodore A. McKee
                                          Circuit Judge

DATED: September 29, 2008
