No: 03-9010 and 03-9011 JOSEPH J. KINDLER v. MARTIN HORN, Commissioner, Pennsylvania Department of Corrections

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

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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

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