On Appeal from the United States District Court for the Middle District of Pennsylvania D.C. Civil No. 86-1514.
Gibbons, Chief Judge, Higginbotham and Scirica, Circuit Judges.
George Feigley, a Pennsylvania state prisoner, appeals from a judgment dismissing his petition for a writ for habeas corpus. The petition raises a double jeopardy claim which, Feigley contends, was duly presented to the Pennsylvania courts. The district court dismissed the petition on the ground that by escaping from prison during the pendency of a Pennsylvania post-conviction petition in which his double jeopardy claim was raised, Feigley waived the opportunity to have that claim considered. We affirm.
In 1975 Feigley was convicted on several counts growing out of sexual acts with young girls. He was sentences of five to ten years; an aggregate of ten to twenty years. In February of 1976, the state trial court modified the sentence to two consecutive three and one-half to ten year terms; an aggregate of seven to twenty years. Thereafter, on May 5, 1976, the state trial court vacated the order modifying the sentences, thus reinstating the initial sentences aggregating ten to twenty years. The May 5, 1976 order is challenged on double jeopard grounds. At issue is Feigley's eligibility for parole after serving seven rather than ten years.
Following the entry of the May 5, 1976 order, Feigley filed several pro se post conviction relief petitions in the state trial court, at least one of which presented his double jeopardy claim. While those petitions were pending, on July 2, 1976, Feigley escaped from prison. Upon learning of Feigley's escape, the state trial judge dismissed his post-conviction relief petitions on the ground that, under Pennsylvania law, an escape from confinement disentitles the defendant to call upon the resources of the court of adjudicate his claims.
Feigley remained at large until March 5, 1979. Thereafter he filed in the state trial court several petitions under the Pennsylvania Post Conviction Hearing Act, one or more of which sought adjudication of the double jeopardy claim. On July 15, 1986 the state trial court dismissed these petitions on the ground that having escaped from prison while his earlier petitions were pending, Feigley had waived his right to pursue the claims they presented. The last of these summary dismissals was appealed to the Superior Court of Pennsylvania, which affirmed. The Superior relied on the same ground as the trial court: Feigley's escape was a waiver of his right to challenge the legality of his sentence. Commonwealth v. Feigley, No. 102 Harrisburg 1986 (Pa.Super.Mem.Op Sept. 15, 1986).
On October 23, 1986, Feigley filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania. The district court, by order dated March 27, 1987, dismissed the petition on the ground that by escaping from prison in 1976 Feigley had waived his right to present his double jeopardy claim to the state courts, and that this deliberate waiver bars federal habeas corpus relief. On April 27, 1987 Feigley filed a timely notice of appeal and subsequently the district court granted a certificate of probable cause for appeal.
Feigley does not dispute that Pennsylvania law an escape is deemed a procedural waiver of the right to seek relief from the Pennsylvania courts. See Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984); Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984); Commonwealth v. Boyd, 244 Pa. Super. 98, 366 A.2d 934 (1976). Moreover, a challenge to the constitutionality of this Pennsylvania procedural rule on procedural due process grounds is not open to Feigley since dismissals of escaped prisoners' appeals has been a practice long approved by the Supreme Court. Estelle v. Dorrough, 420 U.S. 534, 537, 43 L. Ed. 2d 377, 95 S. Ct. 1173 (1975); Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S. Ct. 498, 24 L. Ed. 2d 586 (1970). See also Government of the Virgin Islands v. James, 621 F.2d 588 (3d Cir. 1980). This rule on the effect on the effect of an escape as a procedural bar to an appeal has been applied, as well, to habeas corpus petitions challenging deportation orders. Arana v. United States Immigration and Naturalization Service, 673 F.2d 75 (3d Cir. 1982).
Feigley contends, and rightly so, that a valid state law procedural bar to the consideration by state courts of a federal claim does not necessarily bar federal habeas corpus relief. Fay v. Noia, 372 U.S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963); Brown v. Allen, 344 U.S. 443, 97 L. Ed. 469, 73 S. Ct. 397 (1953). Habeas corpus relief depends upon whether the petitioner can satisfy the federal tribunal, applying a federal law standard, that the procedural default should be disregarded. The question presented, which is a matter of first impression in this court, is whether a prisoner who escaped and was recaptured has satisfied the federal standard for disregarding state law procedural bar.
While it is possible that the "deliberate bypass" standard of Fay may continue to be the appropriate federal standard to be applied to some limited class of procedural defaults, this court has applied the "cause and prejudice" standard announced in Engle v. Isaac, 456 U.S. 107, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982) and Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977) to the procedural default of an untimely state collateral attack on a conviction. United States ex rel. Caruso v. Zelinsky, 689 F.2d 435 (3d Cir. 1982). If the state's interests in refusing to consider a late collateral attack warrant the more deferential standard of "cause and ...