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WENGER v. FRANK

No. 99-3337.

266 F.3d 218 (2001)

Robert E. WENGER, Jr., Appellant, v. Frederick K. FRANK; Attorney General of Pennsylvania.

United States Court of Appeals, Third Circuit.

Filed August 27, 2001.

Attorney(s) appearing for the Case

Mary Gibbons, (Argued), Toms River, NJ, Counsel for Appellant.

Michael A. George, (Argued), District Attorney, Office of District Attorney, Adams County Courthouse, Gettysburg, PA, Counsel for Appellee.

D. Michael Fisher, Attorney General, Robert A. Graci, Assistant Executive Deputy, Attorney General, Office of the Attorney General, Harrisburg, PA, Counsel for Amicus Attorney General of Pennsylvania.

Before: ALITO and RENDELL, Circuit Judges, and SCHWARZER, Senior District Judge.

OPINION OF THE COURT

ALITO, Circuit Judge:

This is an appeal from a District Court order dismissing a petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. The District Court dismissed the petition under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), holding that the petition, which advanced three claims, contained two that were unexhausted and was therefore a "mixed petition....

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