With his options at the state level exhausted, former Penn State President Graham Spanier has filed an appeal in federal court to vacate his 2017 conviction on a child endangerment charge.

In a petition filed last week in U.S. Middle District Court of Pennsylvania, Spanier’s attorneys argued that the conviction violates his rights under the U.S. Constitution. A jury in Dauphin County found Spanier guilty on one count of misdemeanor endangering the welfare of a child for his handling of Mike McQueary’s 2001 report about former Penn State football assistant coach Jerry Sandusky with a boy in a locker room shower.

Spanier was informed of the report by former Athletic Director Tim Curley and Senior Vice President Gary Schultz, both of whom pleaded guilty to one count of child endangerment. The three administrators did not report the incident to law enforcement, instead opting to talk to Sandusky, bar him from bringing children to campus facilities, and report it to Dr. Jack Raykovitz, the head of Sandusky’s Second Mile charity for at-risk youth where prosecutors say Sandusky found most of his victims. All three maintain Spanier was never told that McQueary reported child abuse, only that it was inappropriate “horse play.”

Sandusky was convicted in 2012 on 45 counts related to child sexual abuse. He has maintained his innocence and is continuing to appeal.

The jury at Spanier’s trial found him not guilty on felony counts of child endangerment and conspiracy. Pennsylvania Superior Court denied his appeal of the single conviction and last month the state Supreme Court declined to hear the case.

Spanier was sentenced to two months in county jail and two months home confinement but has remained free pending resolution of his appeals. His attorneys also petitioned the federal court to expedite consideration of the appeal.

“Because Dr. Spanier is sentenced to four months of confinement, he seeks to have his habeas petition decided on an expedited basis so that he may obtain relief from this sentence before fully serving it,” they wrote.

U.S. Magistrate Judge Karoline Mehalchick denied the petition to expedite. Spanier has not yet been scheduled to report to serve his sentence.

As they did at the state level, Spanier’s attorneys are arguing that his conviction should be overturned because it was based on a criminal statute that was not in effect until six years after Spanier received the report in 2001. Changes to the child endangerment law in 2007 added liability for individuals such as Spanier who did not directly supervise a child but employed or supervised someone who did. They argue the jury also was wrongly instructed that they could convict Spanier on the later statute.

The attorneys also say the conviction was later upheld on the basis of a statute-of-limitations exception that the Commonwealth did not raise before or at trial. The statute of limitations for child endangerment is two years and Spanier was not charged until 2012. The exception, his attorneys wrote, would require the Commonwealth to prove the child involved was under 14 at the time of the incident, but prosecutors claim they have never identified the boy in the shower with Sandusky.

Mehalchick ordered the Pennsylvania Attorney General’s Office and Dauphin County Probation Services to respond to Spanier’s petition by April 8. 

PennLive, which first reported the federal appeal, also reported that Spanier’s attorneys and the attorney general’s office have filed new, sealed motions in Dauphin County Court for specially-presiding Judge John Boccabella, who has overseen Spanier’s case since late 2016.

According to PennLive, one of the issues in county court is “a request to modify the sentence, possibly for health reasons.” In a 2017 memorandum seeking a sentence of probation and community service, Spanier’s attorney, Sam Silver, said that Spanier was suffering from health complications including prostate cancer and a possible need for cardiac valve replacement surgery.