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Kindler v. Horn Precedential or Non-Precedential: Precedential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 [email protected]. 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,

(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,

(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