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In re Pendleton

United States Court of Appeals, Third Circuit

October 3, 2013

In re: MICHAEL J. PENDLETON, Petitioner in Case No. 12-3617 In re: FRANKLIN X. BAINES, Petitioner in Case No. 12-3996 In re: COREY GRANT, Petitioner in Case No. 13-1455

Argued on September 10, 2013

On Applications for Leave to File a Second or Successive Habeas Petition pursuant to 28 U.S.C. Section 2244(b) No. 12-3617 related to W.D. Pa. No. 12-cv-00195 before the Honorable Kim R. Gibson, District Judge and Honorable Keith A. Pesto, Magistrate Judge No. 12-3996 related to E.D. Pa. No. 12-cv-05672 before the Honorable Edmund V. Ludwig No. 13-1455 related to D. N.J. No. 06-cv-05952 before Honorable Harold A. Ackerman

Lisa B. Freeland, Esquire (Argued) Federal Public Defender Western District of Pennsylvania Office of Federal Public Defender, Counsel for Petitioner Michael J. Pendleton

Stephen A. Zappala, Jr., Esquire District Attorney Michael W. Streily, Esquire Deputy District Attorney Rusheen R. Pettit, Esquire (Argued) Assistant District Attorney Allegheny County Office of the District Attorney Counsel for Respondent Gerald Rozum, Superintendent at SCI Somerset

David R. Fine, Esquire (Argued) George A. Bibikos, Esquire K&L Gates, LLP, Counsel for Petitioner Franklin X. Baines

R. Seth Williams, Esquire District Attorney Hugh J. Burns, Jr., Esquire Chief, Appeals Unit Thomas W. Dolgenos, Esquire Chief, Federal Litigation Ronald Eisenberg, Esquire (Argued) Deputy District Attorney Edward F. McCann, Jr., Esquire First Assistant District Attorney, Counsel for Respondents Louis S. Folino, Superintendent, SCI, Green; The Attorney General of the Commonwealth of Pennsylvania

Marc Bookman, Esq. Atlantic Center for Capital Representation, Counsel for the Atlantic Center for Capital Representation, Amicus Petitioner

Bradley S. Bridge, Esq. Defender Association of Philadelphia, Counsel for the Defender Association of Philadelphia, Amicus Petitioner

Marsha L. Levick, Esq. Juvenile Law Center of Philadelphia, Counsel for the Juvenile Law Center of Philadelphia, Amicus Petitioner

David B. Glazer, Esquire (Argued) Glazer & Luciano, Counsel for Petitioner Corey Grant

Paul J. Fishman, Esquire United States Attorney Mark E. Coyne, Esquire Assistant United States Attorney Chief, Appeals Division Steven G. Sanders, Esquire (Argued) Assistant United States Attorney, Counsel for Respondent United States of America

Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges.


In Miller v. Alabama, 132 S.Ct. 2455, 2460 (2010), the Supreme Court held that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" Corey Grant, Franklin X. Baines, and Michael J. Pendleton (collectively, "Petitioners"), each of whom claims to be serving a mandatory sentence of life without the possibility of parole for offenses committed as juveniles, seek our authorization to file successive habeas corpus petitions under 28 U.S.C. §§ 2254 (for Baines and Pendleton) and 2255 (for Grant) to raise Miller claims. Both Baines and Pendleton were convicted in state court in Pennsylvania, and Grant was convicted in federal court in New Jersey. Because these petitions raise similar legal questions, we consolidated them for argument and now address them jointly.

Before a second or successive petition may be filed in district court, the petitioner must apply for a certification from the appropriate United States court of appeals. See 28 U.S.C. § 2244(b)(3)(A). A certification giving leave to file a successive petition will be granted when the petitioner has made a "prima facie" showing that his or her claim relies on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Id. § 2244 (b)(2)(A) & (3)(A)(C); see also § 2255(h)(2). Under our precedent, a "prima facie showing" in this context merely means "'a sufficient showing of possible merit to warrant a fuller exploration by the district court.'" Goldblum v. Klem, 510 F.3d 204, 220 (3d Cir. 2007) (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).

The parties here agree that Miller states a new rule of constitutional law, but dispute whether the Supreme Court has made Miller retroactive to cases on collateral review. In Pendleton's and Baines's cases, Pennsylvania argues that Miller is not retroactive; in Grant's case, the United States asserts that Miller is retroactive but that Grant's sentence satisfies the new Miller rule and so no relief is warranted.[1] Petitioners argue: (1) that the Supreme Court implicitly made Miller retroactive by applying the rule to Miller's companion case, Jackson v. Hobbs, which came to the Court through Arkansas's state collateral review process; (2) that Miller announced a substantive rule that "necessarily carr[ies] a significant risk that a defendant . . . faces a punishment that the law cannot impose upon him, " Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (internal quotations marks omitted), and therefore should be given retroactive effect under Teague v. Lane, 489 U.S. 288 (1989) (plurality); and (3) that, in the alternative, Miller qualifies as a "watershed procedural rule[] of criminal procedure" meriting retroactive application under Teague, 489 U.S. at 311.

After extensive briefing and oral argument, we conclude that Petitioners have made a prima facie showing that Miller is retroactive. In doing so, we join several of our sister courts of appeals. See, e.g., Wang v. United States, No. 13-2426 (2d Cir. July 16, 2013) (granting motion to file a successive habeas corpus petition raising a Miller claim); In re James, No. 12-287 (4th Cir. May 10, 2013) (same); Johnson v. United States, 720 F.3d 720 (8th Cir. 2013) (per curiam) (same). But see In re Morgan, 713 F.3d 1365 (11th Cir. 2013) (concluding that Miller is not retroactive), reh'g en banc denied, 717 F.3d 1186; Craig v. Cain, No. 12-30035, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (per curiam) (same).

However, we stress that our grant is tentative, and the District Court must dismiss the habeas corpus petition for lack of jurisdiction if it finds that the requirements for filing such a petition have not in fact been met. Goldblum, 510 F.3d at 219-20; see also 28 U.S.C. § 2244(b)(4) ("A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section."). We therefore grant Petitioners' motions under §§ 2244(b)(3) and 2255(h) and authorize each to file a successive habeas corpus petition in the district court.

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