FILED

OFFJ~F THE CLERK

JEFFREY A. BEARD, et al.Petitioners

Vo

JOSEPH J. KINDLER,Respondent

On Petition for Writ of Certiorarito the United States Court of Appeals

for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

Philadelphia DistrictAttorney’s Office Chief,

3 South Penn SquarePhiladelphia, PA 1910 7

(215) 686-5700ronald.eisenberg@phila, gov

RONALD EISENBERGDeputy District Attorney

(counsel of record)THOMAS W. DOLGENOSFederal LitigationEDWARD F. MCCANN, Jr.Acting 1~t Asst. Dist. Atty.R. SETH WILLIAMSDistrict Attorney

Blank Page

Capital Case

Question Presented

The Pennsylvania courts ruled that respondentKindler forfeited the right to review of most of hisappellate claims by breaking out of jail, twice, andescaping to Canada in order to nullify the deathsentence he received for killing a witness againsthim. On habeas review, the federal court of appealsheld that the fugitive forfeiture rule was aninadequate state ground. This Court granted reviewand issued a full opinion vacating and remanding forreconsideration. On reconsideration, the ThirdCircuit determined that this Court’s decisions in thiscase and in a subsequent case, Walker v. Martin,made no relevant change to the doctrine of adequatestate grounds, and therefore had no impact at all onthe Third Circuit’s previous resolution of this case.

Where a state supreme court explicitly holdsthat escape constitutes a forfeiture of appellate rightsand that recapture provides no basis forreinstatement, and a defendant shortly thereafterbreaks out of prison, escapes to a foreign country, andremains a fugitive there for years, is the state’sfugitive forfeiture rule %nadequate" on the groundthat it allegedly "broke from"past decisions?

ii

List of Parties

Petitioners

Jeffrey A. Beard, Secretary, PennsylvaniaDepartment of Corrections

David DiGuglielmo, Superintendent, StateCorrectional Institution at Graterford

Joseph P. Mazurkiewicz, Superintendent, StateCorrectional Institution at Rockview

Respondent

Joseph J. Kindler

ooo

Table of Contents

Question Presented i

List of Parties ii

Table of Citations v

Opinions Below 1

Statement of Jurisdiction 2

Constitutional and Statutory Provisions 2Involved

Statement of the Case 2

Escape 3

Appeal 7

Habeas 8

Reasons for Granting the Petition 11

Even in the face of a directive to reconsider itsprior ruling, the court of appeals refused to applythe reasoning of this Court’s remanding opinion, ora subsequent opinion, that clarified the adequatestate grounds doctrine.

no Beard v. Kindler: deference to general stateprocedural rules that are "substantiallysimilar" to federal rules.

Walker v. Martin: deference to stateprocedural rules that provide "foreseeablerequirements" and do not "discriminateagainst claims of federal rights."

1.3

Co Deference for adequate state grounds is atleast as important as deference for meritsrulings under § 2254(d).

23

26

Conclusion 28

Appendix

App. 1Third Circuit judgment and opinionon remand

United States Supreme Court opinion A]pp. 27

App. 45Previous Third Circuit opinion

App. 82District Court opinion

App. 95Pennsylvania Supreme Courtopinion, post-conviction appeal

App. 107Pennsylvania Supreme Courtopinion, direct appeal

V

Table of Citations

Federal Cases

Allen v. Georgia, 166 U.S. 138 (1897) 26

Beard v. Kindler, 130 S. Ct. 612 (2009) passim

Bohanan v. Nebraska, 125 U.S. 692 (1887) 22

Cullen v. Pinholster, 131 S. Ct. 1388 (2011) 26

Doctor v. Walters, 96 F.3d 675 (3rd Cir. 1996) 18

Eisler v. United States, 338 UoS. 189 (1949) 22

Feigley v. Fulcomer, 833 F.2d 29(3rd Cir. 1987) 17,19

Felkner v. Jackson, 131 S. Ct. 1305 (2011) 26

Harrington v. Richter, 131 S. Ct. 770 (2011) 26

Mills v. Maryland, 486 U.S. 367 (1988) 8,9

Molinaro v. New Jersey, 396 U.S. 365(1970)

Lark v. Secretary, Pennsylvania Dept. ofCorrections, 2011 U.S. App. LEXIS 12107(3rd Cir., filed June 16, 2011) 27

15,16,19,22

vi

Nolan v. Wynder, 363 Fed. Appx. 868(3rd Cir. 2010) 27

Ortega-Rodriguez v. United States,507 U.S. 234 (1993) 19,20,22

Premo v. Moore, 131 S. Ct. 733 (2011) 26

Smith v. United States, 94 U.S. 97 (1876) 22

Walker v. Martin, 131 S. Cto 1120 (2010) passim

Williams v. Beard, 637 F.3d 195 (3~d Cir. 2011)27

Federal Statutes

28 U.S.C. §1254(1) 2

28 U.S.C. § 2254 2726,27

Docketed Cases

Petition for Writ of Certiorari, Beard v. Lambert,No. 11-38 (U.S., filed July 5, 2011) 2,6

Petition for Writ of Certiorari, Wetzel v. Abu-Jamal, No. 11- (U.S., filed July 8, 2011) 26

vii

State Cases

Commonwealth v. Ciotti, 483 A.2d 852(Pa. 1984) 18

Commonwealth vo Craddock, 564 A.2d 151(Pa. 1989) 18

Commonwealth v. Galloway, 333 A.2d 741(Pa. 1975)

Commonwealth v. Jones, 610 A.2d 439(Pa. 1992) 19

Commonwealth v. Judge, 609 A.2d 785(Pa. 1992) 19

Commonwealth v. Luckenbaugh, 550 A.2d 1317(Pa. 1988) 18

Commonwealth v. Maxwell, 569 A.2d 328(Pa. 1989) 18

Commonwealth v. Passaro, 476 A.2d 611(Pa. 1984) passim

In Interest of Thomas, 626 A.2d 150 (Pa. 1993)19

State Statute

42 Pa. C.S. § 9544 8

16,17,19

VIII

Miscellaneous

Brief for Petitioners, Beard v. Kindler,130 S. Ct. 612 (2009) (No. 08-992) 25

Reply Brief for Petitioners, Beard v. Kindler,130 S. Ct. 612 (2009) (No. 08-992) 25

Kirk Makin, Canadian Verdict Awaited,THE GLOBE AND MAIL (Canada),Sept. 12, 1985 5

Patricia Poirier, Escape Called Religious Duty;Conscience Prompted Murderer to Flee,Court Told, THE GLOBE AND MAIL (Canada),Dec. 2, 1988 6

U.S. Murderer Fighting Extradition Escapesfrom Prison in Montreal, THE GLOBEAND MAIL (Canada), Oct. 24, 1986

Kitty Caparella, An Escapee’s Tale, PHILA.DAILY NEWS, Dec. 21, 1984, at 29 4

16B C. Wright, A. Miller, & E. Cooper,Federal Practice and Procedure § 4026(2nd ed. 1996) 24

Opinions Below

The opinion of the United States Court ofAppeals for the Third Circuit on remand, reaffirmingits previous holding that the Pennsylvania fugitiveforfeiture rule as applied to respondent was aninadequate state ground, was entered Apri129, 2011,and is reproduced in the Appendix at App. 1.

The opinion of this Court, clarifying the standardfor applying the adequate state grounds doctrine,vacating the court of appeals judgment, andremanding for reconsideration consistent with theopinion, was entered December 8, 2009, is publishedat 130 S. Ct. 612, and is reproduced in the Appendixat App. 27.

The previous opinion of the court of appeals,affirming the district court’s grant of a conditionalwrit of habeas corpus, was entered September 3,2008, and is published at 542 Fo3d 70. An excerpt isreproduced in the Appendix at App. 45.

The opinion of the United States District Courtfor the Eastern District of Pennsylvania, mandatingeither a new penalty hearing or a sentence of lifeimprisonment, was entered September 23, 2003, andis published at 291 F. Supp. 2d 323. An excerpt isreproduced in the Appendix at App. 82.

2

Statement of Jurisdiction

This Court has jurisdiction to review thejudgment of the court of appeals under 28 U.S.C. §1254(1).

Constitutional andStatutory Provisions Involved

The constitutional and statutory provision~sinvolved are the Sixth and Eighth Amendments tothe United States Constitution and 28 U.S.C. § 2254.

Statement of the Case

In May 1984, the Pennsylvania Supreme Courtissued an unusually overt opinion announcing exactlywhat would happen to defendants who fled after trial:their appellate rights would be forfeited, and. theirrecapture would provide "no basis" for reinstatementof those rights. In September 1984, Joseph Kindlerissued an unusually overt response to the statecourts: he broke out of prison, escaped to Canada,went on national television there, and then broke outof prison again. After he was recaptured andreturned seven years later, the state courts didexactly what they had said they would do. T, hey heldKindler’s appellate claims forfeited.

3

Yet the federal court of appeals has refused twicenow, and despite a remand for reconsideration bythis Court, to defer to the state’s fugitive forfeiturerule. Instead the court of appeals declared the rule"inadequate," reviewed the merits of Kindler’sforfeited claims, and granted him the relief he fled toCanada to achieve - annulment of his death penalty.

Escape

Kindler was in prison to begin with because hehad been convicted in 1983 for murdering a witness.The victim was 22-year-old David Bernstein. WhenKindler learned that Bernstein was scheduled totestify against him in a burglary case, he recruitedtwo assistants, lured the victim out of his apartment,beat him bloody with a baseball bat, shocked himwith a cattle prod, stuffed him into the trunk of a car,drove him to a river, tied a cinder block to his neckwith a rope, and held him under water until hedrowned. App. 28-29, 117-22.

While post-trial motions were pending before thetrial judge, the Pennsylvania Supreme Court issueda decisive new opinion addressing the state’s fugitiveforfeiture rule. The court acknowledged its previousopinion on the issue, dated nine years earlier. Inthat decision the court had noted "inherentdiscretion" to impose fugitive forfeiture, but chose toaddress the appellant’s claims there after hisapprehension. The new opinion, however, citingfugitive forfeiture authority from this Court, adopted

4

a tougher line, stating categorically that, "by choosingto flee and live as a fugitive, a defendant forfeits th.eright to have his claims considered." The courtrejected as "unpersuasive" - and, indeed, "unseemly"- the notion that a recaptured defendant bepermitted "to resume his appeal merely because hisescape proved unsuccessful."

Four months later, in September 1984, Kindleraccepted those terms - and in grandiose fashion.First he smuggled special saw blades into the prison.The blades were capable of cutting the hardenedmetal bars protecting the cell windows. Then, over aperiod of several weeks, he organized fellow inmatesto take turns sawing through the window bar in oneof the cells on Kindler’s block. When the work wasdone, Kindler arranged with another capitaldefendant, Reginald Lewis, to plug a toilet and createa flood in his cell. That was the signal for otherprisoners on the cell block to begin a violent fight.During the melee, inmates tried to throw a guarclover the third tier railing to the floor below. As theremaining guards rushed upstairs in response,Kindler and Lewis removed the sawed-out windowbar and fled.1

In October 1984, the trial judge dismisseclKindler’s post-verdict motions under the state’s

1Kitty Caparella, An Escapee’s Tale, PHILA. DAILYNEWS, Dec. 21, 1984, at 29.

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fugitive forfeiture rule. But authorities had no ideawhere Kindler was until the following year, when hehappened to be arrested in Quebec because of newcrimes he committed there. App. 29, 96-97, 108-09.

In Canada Kindler gave a series of interviews tothe press. He described his escape from Pennsylvaniaas a flight to freedom, during which he struggled toswim miles upstream in the Delaware River, whichflows near the Philadelphia prison, until he couldmeet family members who would spirit him acrossthe border.2 (The Delaware is also the river in whichKindler drowned David Bernstein.) He explained toa television audience that "I knew there was no deathpenalty here ....So Canada was my first choice." App.29.

Canadian prison, however, was not what Kindlerhad in mind. In October 1986, he broke out of jailagain, this time from the thirteenth floor of aMontreal detention center. Inmates formed a humanpyramid so that Kindler and another murderer couldclimb up and break through a skylight. They thenlowered themselves to the ground, on a rope made ofbed sheets tied together. On the way down, Kindler’spartner lost his grip and was killed in the fall.~

2Kirk Makin, Canadian Verdict Awaited, THE GLOBEAND MAIL (Canada), Sept. 12, 1985.

8U.S. Murderer Fighting Extradition Escapes from(continued...)

6

Kindler remained at large for two years. Fi:nally,after his story was broadcast on a new programcalled "America’s Most Wanted," he was identifiedand arrested in September 1988, in the Canadia:nprovince of New Brunswick. App. 30, 97, 109.

Back in jail, Kindler maintained that he shouldnot be punished for the breakout because it was hisreligious duty to escape; as a Roman Catholic, he wasrequired to defend his life against the sentence ofdeath that awaited him in Pennsylvania. TheCanadian court imposed what it described as .a"somewhat academic," "symbolic sentence" of ninemonths imprisonment for the escape.4

Meanwhile Kindler proceeded with a key aspectof his original plan in choosing Canada as his refuge:he contested extradition on the ground that Canada,as a country without capital punishment, could notproperly return him to Pennsylvania absent officialassurance that his death sentence would be vacated[.Three more years passed as the litigation proceededthrough the justice system to the Canadian Supreme

3(...continued)Prison in Montreal, THE GLOBE AND MAIL (Canada), Oct. 24,1986.

4Patricia Poirier, Escape Called Religious Duty;Conscience Prompted Murderer to Flee, Court Told, THE GLOBEAND MAIL (Canada), Dec. 2, 1988.

7

Court, where Kindler’s position failed by one vote.He was deported in October 1991. App. 30-31.

Appeal

Upon his forced return to Pennsylvania, Kindlersought reinstatement of the post-verdict motions thathad been dismissed after his original escape. Thetrial judge orally denied the request, ruling thatKindler’s entirely involuntary reappearance did notentitle him to review. Having reached retirementage during Kindler’s long absence, the trial judge wasthen replaced with a new judge, who wrote anopinion on the matter. The new judge, applying anabuse of discretion standard, noted that he wouldhave ruled differently, but held that the originaljudge had not abused his discretion in denyingreinstatement of the post-verdict motions. App. 31.

On direct appeal in 1994, the PennsylvaniaSupreme Court took a more moderate approach tofugitive forfeiture than it had in 1984 on the eve ofKindler’s escape. Citing recent authority from thisCourt, the state justices ruled that "a trial court hasauthority" to impose forfeiture, even if the defendantis later apprehended, as long as the flight affectedthe review process and the sanction "is reasonableunder the circumstances." In this case, the statesupreme court held, the trial court’s decision "was areasonable response" to Kindler’s actions.Accordingly, Kindler had forfeited his right to reviewof all issues, other than those for which review was

8

mandated by the state’s capital sentencing statute.App. 31-32, 98-99, 111-14.5

Kindler waited two years, until 1996, to file apetition for post-conviction relief under thePennsylvania Post-Conviction Relief Act (PCRA).The trial court, after reviewing the circumstances ofKindler’s escapes and applying the waiver andprevious litigation provisions of the PCRA, 42 Pa.C.S. § 9544, denied the petition. On appeal[, thePennsylvania Supreme Court affirmed the denial ofpost-conviction relief in 1998. App. 32, 99-100.

Habeas

In 1999, Kindler filed a federal habeas corpuspetition in the Eastern District of Pennsylvania. Thedistrict court ruled, in 2003, that it was not bound byrespondent’s default of his claims in state court,because the state ground was "inadequate." Thedistrict court then reviewed Kindler’s challenges onthe merits. As the Third Circuit has regularly done,the district court granted sentencing relief underMills v. Maryland, 486 U.S. 367 (1988). The courtrejected Kindler’s guilt-phase claims. App. 33, 89-94.

5The mandatory issues were whether the evidence WSLSsufficient to support the finding of guilt and the aggravatingcircumstances, and whether the sentence was excessiwe,disproportionate, or arbitrary. The supreme court found theevidence sufficient and the sentence appropriate, and affirmedthe judgment. App. 114-25.

9

The parties cross-appealed to the Third Circuit.The circuit held that the state courts could notvalidly punish respondent for his repeated escapes bydismissing his claims. The court reasoned that,because state law allowed for discretion to reinstatepost-verdict motions following a fugitive’s recapture,an exercise of that discretion to deny reinstatementwas not the product of a "firm" rule, and thereforecould not provide an adequate state ground.Proceeding to the merits, the appeals court grantedsentencing relief on Kindler’s Mills claim and, forgood measure, on the ground that trial counsel wasineffective for not finding more mitigation evidence topresent. App. 33-34, 57-81.

This Court granted a writ of certiorari.Overturning the Third Circuit ruling, the Court heldthat a discretionary state procedural rule can serveas an adequate ground for a procedural default thatbars federal habeas review. The Court’s rationalewas that application of the adequate state groundsdoctrine in the habeas context must be motivated by"federalism and comity concerns." Federal rules, likethe states’, are often phrased in general terms thatmay not produce completely predictable outcomes.Just as federal judges give force to such rules in theirown courts, they must also give force to similar staterules. The Court remanded to the Third Circuit forreconsideration "consistent with this opinion." App.35-39.

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In the interim, this Court provided furtherguidance in a follow-up decision concerning theadequate state grounds doctrine. Building on itsopinion in this case, the Court emphasized thenarrow focus of the adequate state grounds doctrine:to determine whether a state rule imposesunforeseeable requirements that have the effect ofdiscriminating against claims of federal rights.

The Third Circuit held that neither of thisCourt’s precedents made any difference. Botlhopinions, said the circuit, merely reiterated that thestandard for assessing adequacy remained exactlywhat it had always been: "firmly established andregularly followed." App. 10, 19-20.

Under that standard as the court of appealsrigidly construed it, a "break from past decisions"renders a state rule inadequate. App. 6. In this casethere was such a break, said the circuit, because thelaw at the time of Kindler’s escape was not what thestate supreme court had just said it was, but insteadwas what it had pre~i0usly said it was. App. 15-17.And the law applied at the time of Kindler’s appealwas "obviously" a "new rule," because it "was hardlydiscretionary in the usual sense of the term," butinstead "amounts to a mandatory rule with narrowconditions." App. 18. The result, therefore, was justwhat it had been the first time around - reversal ofJoseph Kindler’s sentence.

11

Reasons for Granting the Petition

Even in the face of a directive to reconsider itsprior ruling, the court of appeals refused toapply the reasoning of this Court’s remandingopinion, or a subsequent opinion, that clarifiedthe adequate state grounds doctrine.

As this Court noted in its previous opinion in thiscase, "It]he procedural default at issue here ... ishardly a typical procedural default." Beard v.Kindler, 130 S. Ct. 612, 619 (2009); App. 38. But thereason the default is atypical is not because it isdifficult to discern. The default is atypical because itis so obvious.

It should have been especially obvious after thisCourt issued two major new opinions on the adequatestate grounds doctrine. The first opinion, in thiscase, made clear that federal habeas courts have noplenary power to enforce precision in state proceduralrules; rather, as a matter of"federalism and comity,"a habeas court must give deference to state rules thatfunction in the same manner as federal rules. 130 S.Ct. at 618; App. 37.

The Court expanded on the point in a secondopinion issued the following Term, while this casewas still under reconsideration by the Third Circuit.In that opinion the Court made clear that the habeascourt’s limited task is simply to determine whether

12

the state rule imposes unforeseeable require~nentssuch that it "discriminates" against the assertion offederal claims. Walker v. Martin, 131 S. Ct. 1120,1130 (2010).

Yet the Third Circuit on remand found nothing ineither of this Court’s opinions that required it even torethink the case, let alone to reach a different result.The appeals court insisted that Kindler and Martinwere just the same old same-old: mere reiterations ofthe "the long-existing standard" for applying theadequate state grounds doctrine. App. 19. Thus thecourt did not defer to the state supreme court~’sunderstanding of its own rule. The court did not lookto the parallel development of the federal fugitiveforfeiture rule. The court did not consider whetherthe Pennsylvania rule in any way operated to putfederal claims at a disadvantage. Instead the circuitadopted its own revisionist history of the state rule,declared it a break from the past and therefore not"firmly established," and once again threw o~tKindler’s well-deserved sentence for torturing andmurdering a judicial witness.

This dismissive response to the precedentprovided by this Court should be corrected. Theunusual nature of the default here makes the case allthe more worthy of review. If the Third Circuit isunwilling to honor a legitimate default even incircumstances that cry out for it, then it is clear thatthe court remains wedded to a misperception of its

13

role in applying the adequate state grounds doctrinein the habeas context.

no Beard v. Kindler: deference to general stateprocedural rules that are "substantiallysimilar" to federal rules.

In Beard v. Kindler this Court granted review inorder to reexamine the operation of the adequatestate grounds doctrine in the particular context ofdiscretionary state procedural rules. The Court’s"narrow" holding was that such rules can serve as anadequate ground to bar federal habeas review. 130 S.Ct. at 618; App. 35.

But that was just the first paragraph of theCourt’s analysis. The rest of the opinion provided therationale for the holding. The Court noted thatapplication of the adequate state grounds doctrine onhabeas review must be motivated by "federalism andcomity concerns." State procedural rules, like federalrules, are often phrased in general terms to allow therule to develop in response to "numerous, variableand subtle factors." "It would seem particularlystrange," therefore, "to disregard state proceduralrules that are substantially similar to those to whichwe give full force in our own courts," 130 S. Ct. at618; App. 36-37. As Justice Kennedy furtherexplained in his concurring opinion, "a properconstitutional balance ought not give [a] federalcourt[ ] latitude in the interpretation and elaboration

14

of its law that it then withholds from the States."130 S. Ct. at 620; App. 43.

Thus, while Kindler may not have thrown out the"firmly established" standard, it certainly provided anew understanding of what the standard mea~t andhow it should be applied. That is presumably whythe Court remanded "for further proceedingsconsistent with this opinion." 130 S. Ct. at 619; App.39 (emphasis supplied).

The court of appeals declined to take thatmessage. When the Commonwealth urged the circuitto consider the core requirement of the state’s rule,as it developed through case law, and to look at thesimilar development and operation of the federalforfeiture rule, the response was adamant. "Wedisagree," held the appeals court. App. 19. "Thestandard remains whether the state rule is firmlyestablished and regularly applied." App. 20.

Indeed the circuit court effectively went evenfurther, suggesting that there was no real basis, forreconsideration at all. Ignoring the relevantlanguage from its own prior opinion, which this Courtquoted in its opinion,~ the circuit denied that it had

G"The [Third Circuit] thus determined that ’the statetrial court still had discretion to reinstate his post-verdictmotions. Accordingly, we conclude that, under Doctor,Pennsylvania’s fugitive waiver law did not preclude the district

(continued...)

15

ever held the state rule inadequate on the groundthat it was discretionary. App. 17. In other words,the issue on which this Court granted certiorari andwrote a full opinion did not exist. That would makethis Court’s decision, quite literally, an advisoryopinion issued in violation of Article III jurisdictionalconstraints.

Had the court of appeals paid proper mind to thisCourt’s opinion instead of minimizing it, the restwould have been easy. The Pennsylvania SupremeCourt made it easy, by providing ample warning onthe eve of Kindler’s flight. In Commonwealth v.Passaro, 476 A.2d 611, 613 (Pa. 1984), "[t]he issuebefore the Court [wa]s the entitlement of a convicteddefendant whose direct appeal has been quashed inconsequence of his escape from custody during thependency of that appeal to reinstatement of hisappeal following his recapture."

The supreme court gave an unequivocal answerto the question. Relying on what it called the"forceful" language in Molinaro v. New Jersey, 396U.S. 365 (1970), the court held that, "by choosing toflee and live as a fugitive, a defendant forfeits theright to have his claims considered." 476 A.2d at 615-16. The defendant’s subsequent recapture provides

~(...continued)court from reviewing the merits of the claims raised inKindler’s habeas petition.’ 542 F.3d at 80." Beard v. Kindler,130 S. Ct. at 617; App. 33-34.

16

"no basis" for undoing that result. "The question is...whether his apprehension, which he in no wayintentionally assisted, should entitle him to rightsalready forfeited. We can ascertain no reason in logicor any policy which would support such a conclusion.."Id. at 616-17. The court thereby rejected the view ofthe single concurring justice, who contested theimpact of Molinaro, and would have allowecl"discretion" to reinstate if the defendant could show"a compelling reason for having his claim heard." Id.at 617 (Zappala, J., concurring).

The date of the opinion was May 25, 1984- fourmonths before Kindler finished sawing through hisPhiladelphia prison bars.

Yet the Third Circuit dismissed Commonwealthv. Passaro - in a footnote - as irrelevant. The federalcourt held that Passaro was limited by thePennsylvania Supreme Court’s prior opinion, somenine years earlier - in another flight case,Commonwealth v. Galloway, 333 A.2d 741 (Pa. 1975).In that case the supreme court ruled that it couldreview the claims of a recaptured fugitive. Instead ofresolving the conflict in the usual way - by followingthe later precedent -. the Third Circuit chose insteadto split the difference. It declared that Passaroapplied only to dismissed appeals, while Gallowaycontrolled in the trial court, up to the point where maappeal was filed. Since Kindler managed to escapewhile his post-verdict motions were still pendingbefore the trial judge, Galloway was the applicable

17

rule, and Kindler was entitled to exactly whatPassaro renounced: reinstatement of rights alreadyforfeited. App. 16-17.

The problem is that this distinction betweenGalloway and Passaro was entirely invented by thefederal court of appeals. It appears nowhere in anydecision of the Pennsylvania Supreme Court. In factthe premise on which the Third Circuit bases itsdistinction- that Galloway involved trial stage flight,and Passaro involved appellate stage flight - is noteven true. The defendant in Galloway escaped twice:once at the trial stage, and then again during appeal.Thus there is no factual distinction between the twocases.7

~Indeed, at the time of the events in question here, noteven the Third Circuit itself believed that there was anymeaningful distinction between Galloway and Passaro. InFeigley v. Fulcomer, 833 F.2d 29, 32 (3~d Cir. 1987), decidedwhile Kindler was at large in Canada, the court of appeals heldthat

[w]e need not speculate about the nuances of differencebetween Galloway and Passaro .... Feigley does not contendthat he escaped with the intention to return in the futureand in reliance on Galloway resubmit his claims to thePennsylvania courts .... [i]t is not necessary that thepetitioner have knowledge of the precise impact of hisdecision to escape. It is enough that he obviously knew thatby attempting an escape which he hoped would bepermanent, he was deliberately bypassing the entire legalsystem.

(continued...)

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As the Pennsylvania Supreme Court understood,the real dispute was not about the exact stage atwhich the defendant happened to flee; it was aboutwhether to permit discretion to reinstate forfeitedrights if the defendant happened to get caught. Thatwas the point of contention between the majority anclconcurring opinions in Passaro, and that was the

issue that played out in a series of state supremecourt cases decided over the next decade,s

7(...continued)Only after a decade had passed - years after Kindler’s

escape, extradition, and appeal - did the Third Circuit changeits mind and concoct its current conglomeration of theGalloway and Passaro opinions. Doctor v. Walters, 96 Fo3d 675(3~d Cir. 1996).

Of course, neither Kindler nor the Pennsylvania courtscould have known that the Third Circuit would subsequentlybreak from its previous decision and impose a now~linterpretation of the Pennsylvania rule.

SSee, e.g., Commonwealth v. Ciotti, 483 A.2d 852 (Pa.1984) (reversing Superior Court - the intermediate appellatecourt - for failing to quash fugitive’s appeal; Zappala, J.,concurring in result but reiterating his position in Passaro);Commonwealth v. Luckenbaugh, 550 Ao2d 1317 (Pao 1988)(reversing Superior Court for reinstating appeal of defendantwho fled during post-verdict motions but was later recaptured;citing Passaro; Zappala, J., dissenting); Commonwealth v.Craddock, 564 A.2d 151 (Pa. 1989); (affirming Superior Courtopinion at 535 A.2d 1189, holding that defendant forfeited hi[sclaims by fleeing during jury deliberations, although he wasrecaptured one month later); Commonwealth v. Maxwell, 569

(continued...)

19

None of that, however, could legitimately havemattered to Joseph Kindler in the summer of 1984.There was no need to "speculate about the nuances ofdifference between Galloway and Passaro." Feigleyv. Fulcomer, 833 F.2d at 32; the general rule wasapparent. Whatever the past or future course ofdevelopment of Pennsylvania fugitive forfeiture

doctrine, Kindler was on notice, loud and clear, thathis escape options were in conflict with his legaloptions. He decided to go with cut-and-run.

Ironically, it was Kindler’s own appeal - once hisflight finally failed - that marked a shift towardlenience in Pennsylvania law. This time around thePennsylvania Supreme Court looked not only toMolinaro, but to a more recent flight case, Ortega-Rodriguez v. United States, 507 U.S. 234 (1993),decided by this Court during the years between

s(...continued)A.2d 328 (Pa. 1989) (dismissing appeal where defendant fledduring appeal and was recaptured next day; Zappala and Nix,JJ., dissenting from court’s reliance on Passaro);Commonwealth v. Judge, 609 A.2d 785 (Pa. 1992) (forfeitingclaims of escaped fugitive in reliance on Passaro; Zappala, J.,dissenting on basis of his concurrence in Passaro);Commonwealth v. Jones, 610 A.2d 439 (Pa. 1992) (escape at anytime after trial acts as irrevocable, per se forfeiture, citingPassaro; Zappala and Cappy, JJ., dissenting, would allowreinstatement for compelling reasons); In Interest of Thomas,626 A.2d 150 (Pa. 1993) (recapture provides no basis forreinstatement of appeal rights, reaffirming Passaro; Cappy, J.,dissenting).

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Kindler’s escape and his appeal. While the statecourt recognized that the supervisory decision inOrtega-Rodriguez was not binding on the states, itchose to follow this Court’s lead and adopt Ortega’smore forgiving approach to former fugitives.Accordingly, the state supreme court did not requirea mandatory penalty, holding instead that forfeiturewas appropriate only where the flight had aft~ctedthe appellate process and the sanction wasreasonable under the circumstances. App. 111-13. Inthe end, therefore, t~ndler actually benefitted frornthe development of state law that began after hisescape.

But that was not good enough for the ThirdCircuit. In the federal court’s view, the state rulewas still not sufficiently discretionary. The courtcomplained that "the rule applied to bar Kindler’sappeal was hardly discretionary in the usual sense ofthe term," because the state court guided thatdiscretion by requiring reasonableness and aconnection between the flight and the appellateprocess. According to the circuit court, such guidanceis a bad thing, because it allegedly "amounts to amandatory rule with narrow conditions." "Worse,"continued the court, the "appellate standard ofreview is sharply deferential," making it too hard toreverse a lower court’s decision to impose (but also, ofcourse, not to impose) forfeiture. App, 18-19.

These criticisms of the state rule are simplydumbfounding. The ]imitations on forfeiture adopted

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in Kindler’s case worked to the advantage ofdefendants, not to their detriment. And the fact thata rule has "conditions" does not mean there is nodiscretion. Especially when the "conditions" comedown to the wide-open question of whether thesanction is reasonable. That broad standard isexactly what creates the opportunity for discretion.Similarly, the fact that a reviewing court must be"sharply deferentiar’ to an exercise of discretion doesnot mean there is no discretion. The whole pointabout discretion is that different judges can come todifferent conclusions. The limited review is exactlywhat protects the exercise of discretion.

But the real mind-boggler is why it even matters.Why must we ascertain the degree of discretion in astate’s fugitive forfeiture rule in order to assess itsadequacy? As the Third Circuit itself recognized onceupon a time, an escaping prisoner isn’t planning oncoming back. He makes no calculations aboutwhether he will have a compelling reason to seekreinstatement if he is recaptured. And even if cleverMr. Kindler was the exception to that rule, even if hehad pondered from the beginning the excuse hewould offer to justify his escape, what differencewould it make? What was he going to say? That itwas his "religious duty?" That didn’t even work inCanada.

All these difficulties could have been avoidedsimply by following this Court’s admonition inKindler: habeas courts may not disregard state

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procedural rules that are substantially similar tofederal rules given full force in federal court.

The obvious analogue for this case is the federalfugitive forfeiture rule. For nearly a hundred years,the rule as enunciated by this Court consisted solelyof a small handful of one- and two-paragraphopinions in which the Court announced that it haddiscretion to dismiss the appeal of a fugitive, withoutdiscussing any guidelines for the exercise of suchdiscretion. In each case the Court, without furtherexplanation, then deferred dismissal to allow thefugitive an opportunity to surrender himself. Smit,hv. United States, 94 U.S. 97 (1876); Bohanan v.Nebraska, 125 U.S. 692 (1887); Eisler v. UnitedStates, 338 U.S. 189 (1949).

Then in Molinaro v. New Jersey, 396 U.S. 365(1970), the Court for the first time flatly declaredthat flight "disentitles" the defendant from adetermination of his claims. This time, without priorwarning, the Court dismissed the case immediately,with no opportunity to purge the forfeiture througlhsurrender.

Then, a quarter century later, recognizing thatmany lower federal courts had understood Molinaro’sdisentitlement language to be mandatory, the Courtaltered course again in Ortega-Rodriguez v. UnitedStates, 507 U.S. 234 (1993). This time the Courtcautioned that forfeiture is not automatic, ’whileleaving entirely to the lower courts the task of

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developing more specific standards, if they so desired.Id. at 250 n.23, 251 n.24.

Yet no one, to the Commonwealth’s knowledge,has ever suggested that federal fugitives lacksufficient guidance as to the consequences of escape,and may therefore renew their appeals with impunityin the unfortunate event that they are recaptured. Ifthe federal courts honor their own rule, with all itsuncertainties, how can they possibly rejectPennsylvania’s?

Walker v. Martin: deference to stateprocedural rules that provide "foreseeablerequirements" and do not "discriminateagainst claims of federal rights."

This Court again addressed the adequate stategrounds doctrine in Walker v. Martin, 131 S. Ct. 1120(2011). The specific context, as in Beard v. Kindler,was a discretionary state procedural rule. As inKindler, however, the Court’s reasoning went beyondthe particular’ rule in question, enlarging on theCourt’s earlier opinion in this case. The ThirdCircuit ignored all of it.

Like Kindler, Martin is an explication of theCourt’s "firmly established" test for assessingadequacy. But the Court added or, perhaps moreaccurately, restored significant elements that havebeen lacking in the analyses carried out by manylower federal courts. Uncertainty, cautioned the

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Court, is not enough to render a rule inadequate.131 S. Ct. at 1130. Citing WRIGHT & MILLER,9 theCourt described "novel" state rules as those thatimpose "unforeseeable requirements without fair orsubstantial support in prior state law." Id. Thedanger of such unforeseeable requirements, as theMartin Court repeatedly stressed, is that they maybe used to "discriminate" against assertions of federalrights. Id. at 1125, i[130, 1131.

The Third Circuit was fully aware of Martin,which was issued over two months before the circuit’smost recent decision in this case. Indeed the court ofappeals cited Martin, both at the beginning and theend of its analysis. But on each occasion the circuittreated this Court’s opinion as support for theproposition that the adequacy doctrine remainscompletely unchanged. App. 10, 19-20. As with thisCourt’s opinion in Kindler, the court of appealsrefused to engage with the actual reasoning of theprecedent it was bound to apply.

Then again, there wouldn’t have been much tosay. Kindler can hardly claim that the Pennsyl~aniafugitive forfeiture rule, whatever its precise status atany exact moment in time, imposed anyunforeseeable requirements on him. The onlyrequirement the rule ever imposed on litigants was

916B C. Wright, A. Miller, & E. Cooper, Federal Practic, eand Procedure § 4026 (2~d ed. 1996).

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not to escape from prison. Kindler surely knew howto do that.

Nor could he conceivably make out a claim thata rule providing for fugitive forfeiture discriminatesagainst assertions of federal rights. Again, Kindlercould have completely avoided any possibility of sucha forfeiture by doing one simple thing: staying put.And, as noted when this case was previously beforethis Court, the Pennsylvania Supreme Court hasfrequently entertained federal claims identical tothose on which the Third Circuit would grantsentencing relief here. Indeed, the state supremecourt has itself granted relief on those claims in atleast sixteen cases.1°

All Kindler had to do to secure review of hisfederal claims was follow the state rule. All theThird Circuit had to do to uphold the state courtdefault was follow this Court’s precedent.

1°See Brief for Petitioners at 28-29 n.21, Beard v.Kindler, 130 S. Ct. 612 (2009) (No. 08-992); Reply Brief forPetitioners at 14, Beard v. Kindler, 130 S. Ct. 612 (2009) (No.08-992),

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Co Deference for adequate state grounds is atleast as important as deference for meritsrulings under § 2254(d).

As this Court held over a century ago, escape is"a contempt of authority, to which no court is boundto submit." Allen v. Georgia, 166 U.S. 138, 141(1897). Except, apparently, for the Pennsylvaniacourts. Thanks to tlhe Third Circuit’s unwarrantedinvocation of the adequate state grounds doc~Lrine,the state courts were stripped of their ability topenalize a capital defendant’s flight. They werereduced, like the judge in Montreal, to the "academic"act of imposing a symbolic prison sentence thatKindler would never have to serve.

This past Term the Court has gone to unusuallengths to enforce the deference provision of thefederal habeas corpus act, 28 U.S.C. § 2254(d). See,e.g., Premo v. Moore, 131 S. Ct. 733 (2011);Harrington v. Richter, 131 S. Ct. 770 (2011); Felkner

v. Jackson, 131 S. Ct. 1305 (2011); Cullen v.Pinholster, 131 S. Ct. 1388 (2011).11 As this caseillustrates, it is essential that the Court e~Lforc,e

11Although perhaps the Court’s efforts have not beendramatic enough to affect the Third Circuit’s application of §2254. See, e.g., Petition for Writ of Certiorari, Beard v.Lambert, No. 11-38 (U.S., filed July 5, 2011); Petition for Wristof Certiorari, Wetzel v. Abu-Jamal, No. 11-(U.S., filed July8, 2011).

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similar deference under the adequate state groundsdoctrine.

Indeed, improper nullification of a stateprocedural rule will in many instances prove evenmore intrusive than the overturning of an individualstate court merits ruling in violation of § 2254. Adeclaration of inadequacy often means the abrogationof an entire class of procedural defaults, affectingdozens of cases on federal habeas review. While thisCourt’s recent opinions in Kindler and Martinaddress the problem, the Third Circuit, in this andother cases, appears ready to distinguish away theseprecedents into irrelevance.12

Ifa federal court can rewrite state supreme courtdecisions to its liking, brush aside the mandate ofthis Court to reconsider its prior ruling, and wipe outthe most egregious of all procedural defaults, that isnot deference; it is habeas gone wild. Review iswarranted.

12See, e.g., Nolan v. Wynder, 363 Fed. Appx. 868, 872 n.3(3rd Cir. 2010) (unpublished) (Beard v. Kindler "does not alter"the prior standard); Williams v. Beard, 637 F.3d 195, 221 (3rdCir. 2011); Lark v. Secretary, Pennsylvania Dept. of Corrections,2011 U.S. App. LEXIS 12107, *45-46 (3rd Cir., filed June 16,2o~I).

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Conclusion

For these reasons, petitioners respectfullyrequest this Court to grant the writ of certiorari.

Respectfully submitted,

Philadelphia DistrictAttorney’s Office

3 South Penn SquarePhiladelphia, PA 19107(215) 686-5700ronald.eisenberg@phila.gov

RONALD EISENBERG

Deputy District Attorney(counsel of record)THOMAS W. DOLGENOSChief, Federal LitigationEDWARD F. MCCANN, Jr.Acting 1’t Asst. Dist. Atty.R. SETH WILLIAMS

District Attorney