Darren JOHNSON, Appellant v. David DIGUGLIELMO, 343 F. App'x 749

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, 579 F.3d 330, 370-71 (3d Cir.2009) (Hardiman, J., dissenting) (en banc). Accordingly, we reverse and remand for further consideration. . Although Judge Hardiman dissented in Boyd, the portion of his dissent discussing the previously litigated rule was joined by a majority of the court.