Darren Johnson v. DAVID DIGUGLIELMO (Pursuant to Rule 43(c), F.R.A.P.) On Appeal from the Order of…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 05-2179
_____________
DARREN JOHNSON,
Appellant
v.
DAVID DIGUGLIELMO*
*(Pursuant to Rule 43(c), F.R.A.P.)
___________
On Appeal from the Order of the United States District Court
for the Eastern District of Pennsylvania
(No. 00-cv-02334)
District Judge: Hon. Petrese Tucker
Argued on March 11, 2008
Before: FUENTES, CHAGARES and ALDISERT, Circuit Judges.
(Opinion Filed: September 1, 2009)
Elayne C. Bryn, Esq. [ARGUED]
1500 John F. Kennedy Boulevard, Ste. 1230
Philadelphia, PA 19102
Counsel for Appellant
Robert M. Falin, Esq.
Office of District Attorney
Montgomery County Courthouse
P.O. Box 311
Norristown, PA 19404

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Although Judge Hardiman dissented in Boyd, the portion of his dissent discussing1
the previously litigated rule was joined by a majority of the court.
2
Counsel for Appellee
FUENTES, Circuit Judge.
On April 4, 2005, the District Court declined to review Darren Johnson’s habeas
petition on the grounds that he had defaulted his claims in state court pursuant to an
independent and adequate state procedural rule. The basis for this alleged default is
petitioner’s violation of Pennsylvania’s “previously litigated” rule, which bars a petitioner
from seeking review under Pennsylvania’s Post-Conviction Relief Act (“PCRA”) unless
he/she can show that the allegation of error “has not been previously litigated or waived.”
42 Pa. Cons. Stat. Ann. § 9544(a). For the reasons laid out in our en banc decision in
Boyd v. Warden, the ‘previously litigated’ rule insulates state courts from duplicative
efforts, but does not preclude federal habeas review. Boyd v. Warden, No. 07-2185, 2009
WL 2342892, at *35 (3d Cir. July 31, 2009) (Hardiman, J., dissenting) (en banc).1
Accordingly, we reverse and remand for further consideration.

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