MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
SUSAN PARADISE BAXTER, Magistrate Judge.
State prisoner Russell Joseph Stauffer has filed a petition for a writ of habeas corpus. [ECF No. 1]. The petition is second or successive and Stauffer has not received from the U.S. Court of Appeals for the Third Circuit an order authorizing this Court to consider it, as required by 28 U.S.C. § 2244(b)(3)(A). Accordingly, it is respectfully recommended that the petition be summarily dismissed for lack of jurisdiction and that a certificate of appealability be denied. See 28 U.S.C. § 2243; Rule 4 of the Rules Governing Section 2254 Cases In the U.S. District Courts.
In a case before the Court of Common Pleas of Erie County at Criminal Docket No. CP-25-CR-2029-1993, a jury found Stauffer guilty of first degree murder. He was age 32 at the time he committed the crime. Commonwealth v. Stauffer, No. 2021 WDA 2012, slip op. at 7 n.6 (Pa.Super. June 3, 2013) ("Appellant concedes that he was thirty-two years old at the time of the murder.") (attached as Ex. 1). In September of 1994, the trial court imposed the mandatory sentence of life imprisonment. The Superior Court of Pennsylvania affirmed his judgment of sentence and the Supreme Court of Pennsylvania denied a petition for allowance of appeal. Id. at 1-2 (citing Commonwealth v. Stauffer, 687 A.2d 861 (Pa.Super. 1996) (unpublished memorandum), appeal denied, 698 A.2d 66 (Pa. 1997)).
On October 24, 2000, Stauffer, through his attorney Stanton D. Levenson, Esq., filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenged his September 1994 judgment of sentence. That case was docketed as Stauffer v. Brennan, 1:00-cv-308 (W.D. Pa.) and assigned to Judge Sean J. McLaughlin, who referred it to Magistrate Judge Francis X. Caiazza. On April 21, 2003, Magistrate Judge Caiazza issued a Report and Recommendation in which he recommended that the petition be denied on the merits. On June 9, 2003, Judge McLaughlin issued a Memorandum in which he adopted the Report and Recommendation as the Opinion of the Court, denied the petition, and a certificate of appealability. The Third Circuit Court subsequently denied a request for a certificate of appealability that Stauffer had filed with it at Appellate Docket No. 03-2930. The U.S. Supreme Court denied a petition for a writ of certiorari on October 12, 2004.
On June 25, 2012, the U.S. Supreme Court decided Miller v. Alabama, ___ U.S. ___ , 132 S.Ct. 2455 (2012). It held that a mandatory sentence of life without the possibility of parole for a juvenile convicted of homicide violates the Eighth Amendment's prohibition of cruel and unusual punishment by failing to allow individualized sentencing that takes into account the youth of the offender and the nature of the crime. Since the issuance of Miller, numerous Pennsylvania prisoners have filed post-conviction motions in state court seeking relief under the holding in that case. In order to avoid any potential problem regarding the expiration of AEDPA's limitations period, they also have filed "protective" petitions for a writ of habeas corpus in federal court and have asked the federal court to stay the federal case pending the outcome of the state court proceeding.
Stauffer is one of those state prisoners who filed a state post-conviction motion claiming that he is entitled to relief under Miller. The state court docket sheets for his state case, which are available for review online at http://ujsportal.pacourts.us, establish that on September 25, 2012, the Court of Common Pleas denied his post-conviction motion as untimely. Stauffer filed a pro se appeal to the Superior Court. On June 3, 2013, the Superior Court issued a Memorandum in which it affirmed the Common Pleas Court's decision. Because he was age 32 when he committed the murder, the Superior Court rejected his contention that Miller applied to his case. Stauffer, No. 2021 WDA 2012, slip op. at 2-7. Stauffer has filed a petition for allowance of appeal with the Supreme Court of Pennsylvania. That petition was pending before that court at Docket No. 309 WAL 2013 at the time of the issuance of this Report and Recommendation.
In the petition for a writ of habeas corpus [ECF No. 1] that Stauffer has filed with this Court, he raises an equal protection claim based on the holding in Miller. He also has filed a motion in which he requests that this Court stay this case while he completes exhaustion of his state court remedies. [ECF No. 3]. Because it is recommended that this case be dismissed for lack of jurisdiction for the reasons set forth below, that motion will be denied by a separate order.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(b) mandates that before a state prisoner may file a second or successive habeas corpus petition in which he challenges a judgment of sentence that he previously challenged in a federal habeas action, he must first obtain an order from the court of appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). See, e.g., Magwood v. Patterson, ___ U.S. ___ , 130 S.Ct. 2788 (2010). Once the prisoner moves for authorization to file a second or successive petition, a three-judge panel of the court of appeals must decide within thirty days whether there is a prima facie showing that the application satisfies § 2244's substantive requirements, which are set forth in § 2244(b)(2). See U.S.C. § 2244(b)(3)(C). AEDPA's allocation of "gatekeeping" responsibilities to the courts of appeals has divested district courts of jurisdiction over habeas petitions that are second or successive filings. See, e.g., Burton v. Stewart , 549 U.S. 147 (2007).
Because in the instant habeas petition Stauffer is once again challenging his September 1994 judgment of sentence, it is subject to the authorization requirements set out at 28 U.S.C. § 2244(b). He has not received from the Third Circuit Court of Appeals permission to file a second or successive petition. Therefore, this Court lacks jurisdiction over the petition. Burton , 549 U.S. at 152-54. It is the practice of this Court to dismiss second or successive petitions, but we will transfer a case if it would promote the interests of justice. A leading federal habeas treatise explains:
The statute provides that the district court shall dismiss a second or successive petition that has not been authorized by the circuit court. 28 U.S.C.A. § 2244(b)(1), (4); Norris v. Konteh , 67 F.Supp.2d 833, 839 n.7 (N.D. Ohio 1999) ("It appears also that transfer of the instant petition pursuant to 28 U.S.C.A. § 1631 would not be in the interest of justice in this case because such transfer would be contrary to 28 U.S.C.A. § 2244(b)(4)"); accord Jackson v. Mitchem , 998 F.Supp. 1375, 1376 (M.D. Ala. 1998) (dismissal rather than transfer was the appropriate way of handling second or successive petition filed in the district court without court of appeals authorization).
Notwithstanding the "dismissal" language in § 2244(b), federal circuit courts have ruled that if the prisoner erroneously files his motion for leave to file a second or successive petition in the district court instead of the federal circuit court (or if the prisoner improperly files a second or successive petition in the district court without first having obtained authorization by the federal circuit), the district court has the option of transferring the motion or petition to the court of appeals. The Second and Sixth Circuits mandate transfer. In re Sims , 111 F.3d 45, 47, 1997 FED App. 0129P (6th Cir. 1997); Liriano v. U.S. , 95 F.3d 119, 122 (2d Cir. 1996), as amended, (Oct. 7, 1996). The First, Third, Fourth, Eighth and Tenth Circuits permit, but do not mandate, transfer. In re Cline , 531 F.3d 1249, 1252 (10th Cir. 2008); Jones v. Braxton , 392 F.3d 683, 691, 60 Fed. R. Serv. 3d 369 (4th Cir. 2004); Robinson v. Johnson , 313 F.3d 128, 139, 54 Fed. R. Serv. 3d 235 (3d Cir. 2002); Boyd v. U.S. , 304 F.3d 813, 814 (8th Cir. 2002) (per curiam); U.S. v. Barrett , 178 F.3d 34, 41 n.1 (1st Cir. 1999). In Cline, the Tenth Circuit stated that a transfer is appropriate if it would be in the interests of justice. Factors district courts should consider in deciding whether to transfer an unauthorized successive claim include "whether the claims would be time barred if filed anew in the proper forum, whether the claims alleged are likely to have merit, and whether the claims were filed in good faith or if, on the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction." 531 F.3d at 1252.
Brian Means, Federal Habeas Manual § 11:81 (2013) (emphasis in original), available at Westlaw FEDHABMAN.
In this case, the better course is to summarily dismiss. There is no basis to conclude that the interests of justice would be promoted by transferring this case to the Third Circuit Court, particularly since Stauffer was age 32 when he committed his crime and, therefore, the holding in Miller does not apply to his case.
C. Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that "[a] certificate of appealability may issue... only if the applicant has made a substantial showing of the denial of a constitutional right." In Slack v. McDaniel , 529 U.S. 473, 484 (2000), the Supreme Court stated that "[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Applying this standard here, jurists of reason would not find it debatable whether the instant petition is second or successive and should be summarily dismissed. Accordingly, a certificate of appealability should be denied.
For the foregoing reasons, it is respectfully recommended that the petition for a writ of habeas corpus be summarily dismissed and that a certificate of appealability be denied.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, Stauffer is allowed to file objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman , 637 F.3d 187, 193 n.7 (3d Cir. 2011).
Appeal from the PCRA Order September 25, 2012 In the Court of Common Pleas of Erie County Criminal Division at No.: CP-25-CR-0002029-1993
BEFORE: SHOGAN, J., LAZARUS, J., and PLATT, J.[*]
MEMORANDUM BY PLATT, J. FILED: June 3, 2013
Appellant, Russell J. Stauffer, appeals pro se from the order denying his second petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant's petition is untimely without a proven exception to the statutory time bar. We affirm.
On September 20, 1994, a jury convicted Appellant of first degree murder and aggravated assault for killing his wife, and the court sentenced him to life imprisonment without parole. ( See Appellant's Brief, at 2). This Court affirmed the judgment of sentence on direct appeal, and our Supreme Court denied allowance of appeal, on June 16, 1997. ( Commonwealth v. Stauffer, 687 A.2d 861 (Pa.Super. 1996) (unpublished memorandum), appeal denied, 698 A.2d 66 (Pa. 1997)).
Appellant filed a timely, counseled first PCRA petition on May 19, 1998, which the PCRA court denied on October 16, 1998. This Court affirmed, and our Supreme Court denied allowance of appeal. ( Commonwealth v. Stauffer, 748 A.2d 777 (Pa.Super. 1999) (unpublished memorandum), appeal denied, 759 A.2d 385 (Pa. 2000)).
Appellant filed the instant petition, pro se, on August 10, 2012,  which the PCRA court denied, after a notice of intention to dismiss pursuant to Pa.R.Crim.P. 907, and a written response from Appellant, on September 25, 2012. This timely appeal followed.
Appellant raises two questions for our review.
A. Did [the PCRA] court abuse its discretion in ruling that the Supreme Court ruling in Miller [ v. Alabama, 132 S.Ct. 2455 (2012)] has no bearing on adults in Pennsylvania who received mandatory life without parole sentences?
B. Did [the PCRA] court abuse its discretion when it ruled without analyzing Equal Protection as applied to the facts at hand?
(Appellant's Brief, at 1).
Our standard of review is limited to examining whether the PCRA court's findings of fact are supported by the record, and whether its conclusions of law are free from legal error. Our scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the party who prevailed in the PCRA court proceeding.
Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012) (citations omitted). "Questions regarding the scope of the statutory exceptions to the PCRA's jurisdictional time-bar raise questions of law; accordingly, our standard of review is de novo. " Commonwealth v. Fahy, 959 A.2d 312, 316 (Pa. 2008) (citation omitted).
"In the PCRA context, jurisdiction is tied to the filing of a timely PCRA petition.... Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition." Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.Super. 2013) (citations and internal quotation marks omitted).
The PCRA requires that all petitions be filed within one year of the date the judgment of sentence became final unless the petitioner alleges and proves that the failure to raise a timely claim: (1) was the result of interference by government officials; (2) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by reasonable diligence; or (3) the right asserted is a constitutional right that has been recognized by the United States Supreme Court or the Supreme Court of Pennsylvania after the one-year time period, and has been held to apply retroactively. 42 Pa.C.S. § 9545(b)(1). Commonwealth v. Saunders, 60 A.3d 162, 163-64 (Pa.Super. 2013).
Here, Appellant's judgment of sentence became final on Monday, September 15, 1997, ninety days after our Supreme Court denied allowance of appeal and the time to petition the United States Supreme Court for a writ of certiorari expired. See U.S.Sup.Ct. Rule 13. Therefore, Appellant's instant petition, filed on August 10, 2012, almost fifteen years later, is untimely on its face unless Appellant pleads and proves one of the statutory exceptions to the time bar.
We construe Appellant's claims liberally in the interest of justice and judicial economy; however, pro se status generally confers no special benefit on an appellant. See Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa.Super. 2003), appeal denied, 879 A.2d 782 (Pa. 2005).
Liberally construed, Appellant's brief argues by implication that he is entitled to an exception to the time bar under Miller v. Alabama, supra and its companion case, Jackson v. Hobbs, also at 132 S.Ct. 2455 (2012). ( See Appellant's Brief, at 4). However, Appellant's reliance is misplaced.
Appellant argues, without citation or other support, that "[t]he [United States] Supreme Court in companion cases Miller v. Alabama ... and Jackson v. Hobbs ... recognized juveniles and adults as comprising a single statutory class insofar as offense and punishment are concerned." ( Id. ). Appellant apparently seeks to invoke section 9545(b)(1)(iii):
[T]he right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(iii).
In this appeal, Appellant neither pleads, nor provides supporting argument or citation to pertinent authority, that Miller announces a new constitutional right, and notably, makes no claim that such a right applies to him or other adult offenders retroactively on collateral appeal. Therefore, Appellant has failed to prove that the exception for a constitutional right "held by that court to apply retroactively" pertains. 42 Pa.C.S.A. § 9545(b)(1)(iii). See Commonwealth v. Wojtaszek, 951 A.2d 1169, 1171-72 (Pa.Super. 2008), appeal denied, 963 A.2d 470 (Pa. 2009) (rejecting reliance on time bar exception of Section 9545(b)(iii), since case cited neither announced new constitutional right, nor applied retroactively). Moreover, Miller simply does not support the claim Appellant asserts.
Appellant argues in effect that the constitutional right to equal protection requires that the holding in Miller be applied to him. We disagree. To the contrary, the entire thrust of Miller is that distinct classes of offenders do exist, and that, based on existing lines of controlling caselaw, juveniles can and must be treated differently from adult offenders: "Here, the confluence of these two lines of precedent leads to the conclusion that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment." Miller, supra at 2464 (emphasis added). The Miller Court reasoned, in pertinent part, as follows:
Roper [ v. Simmons, 543 U.S. 551, 569 (2005)] and Graham [ v. Florida, 130 S.Ct. 2011 (2010)] establish that children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, we explained, they are less deserving of the most severe punishments. Those cases relied on three significant gaps between juveniles and adults. First, children have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking. Second, children are more vulnerable... to negative influences and outside pressures, including from their family and peers; they have limited contro[l] over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child's character is not as well formed as an adult's; his traits are less fixed and his actions less likely to be evidence of irretrievabl[e] deprav[ity].
Id. (most citations and internal quotation marks omitted).
Accordingly, Miller does not provide a statutory exception to the time bar. Appellant's argument that Miller mandates that juveniles and adults be treated the same is totally unsupported by the authority cited, and is therefore, legally frivolous. Additionally, Appellant's invocation of the Universal Declaration of Human Rights presents no statutory exception to the time-bar. ( See Appellant's Brief, at 4).
Therefore, Appellant has failed to plead and prove one of the statutory exceptions to the PCRA time bar. The PCRA court properly determined that it had no jurisdiction to review the merits of his claims.
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PETITION FOR WRIT OF HABEAS CORPUS
Russell J. Stauffer, Petitioner, by his attorney, Stanton D. Levenson, Esquire. moves this Honorable Court pursuant to 28 U.S.C. §2254 for a writ of habeas corpus, and in support thereof, represents as follows:
1. Petitioner's conviction was in the Court of Common Pleas of Erie County, Pennsylvania,
2. The criminal docket number is 2029 of 1993.
3. Sentence was imposed on September 21, 1994.
4. Petitioner was sentenced to a term of life imprisonment.
5. Petitioner was convicted of first-degree murder and aggravated assault arising from the August 25, 1993 killing of his wife, Angela, at the Capri Motel in Erie, Pennsylvania.
6. Petitioner pled not guilty.
7. Petitioner was found guilty by a jury.
8. Petitioner testified at trial.
9. Petitioner appealed from the judgment of conviction.
10. (A) First Appeal
(1) Superior Court of Pennsylvania
(2) Docket number 164 Pgh. 1995
(3) Result: Conviction affirmed on ...