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Kebede v. Wetzel

United States District Court, Third Circuit

October 23, 2013

EMRU KEBEDE
v.
JOHN E. WETZEL, et al.

REPORT AND RECOMMENDATION

THOMAS J. RUETER, Magistrate Judge.

Presently before the court is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, along with a memorandum of law in support thereof (Doc. No. 1). Petitioner is presently incarcerated at the State Correctional Institution located in Rockview, Pennsylvania. Respondents filed a response on September 20, 2013 (Doc. No. 7). For the reasons set forth herein, the court recommends that petitioner's habeas petition be stayed and held in abeyance until his state court proceedings have concluded.

I. BACKGROUND

On September 10, 2009, petitioner was convicted by a jury in the Court of Common Pleas for Lancaster County of second-degree murder and related offenses. (Resp. Ex. E (Commonwealth v. Kebede, No. 838 MDA 2010, slip op. at 2 (Pa.Super. Ct. Jan. 11, 2011)).) Petitioner was sentenced to life imprisonment without parole. Id .; Pet'r's Mem. of Law at 1. It is undisputed that petitioner was sixteen years of age at the time of the killing. The instant habeas petition was docketed on June 24, 2013. Petitioner contends that his sentence is unconstitutional in light of the Supreme Court's recent decision in Miller v. Alabama, ___ U.S. ___ , 132 S.Ct. 2455 (2012). On June 25, 2012, in a case involving a juvenile defendant who had been convicted of homicide, 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.'" Miller , 132 S.Ct. at 2460.

On May 21, 2012, petitioner filed pro se petition for relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541, et seq. (Resp. Ex. P.) On July 30, 2012, petitioner filed a pro se motion for leave to amend the PCRA petition alleging, inter alia, that his sentence violates the rule announced in Miller. (Resp. Ex. Q at 6-7.) Counsel filed an Amended PCRA Petition on August 9, 2012 raising the Miller v. Alabama claim. (Resp. Ex. R.)

The issue of the retroactivity of the Miller decision is currently pending before the Supreme Court of Pennsylvania in Commonwealth v. Cunningham , 38 EAP 2012, 51 A.3d 178 (Pa. 2012). The parties in Cunningham have been directed to address, inter alia, the following issue:

Whether the holding in Miller v. Alabama , 132 S.Ct. 2455 (2012), that a juvenile convicted of a homicide offense cannot be sentenced to life imprisonment without parole unless there is consideration of mitigating circumstances by a judge or jury, retroactively applies to an inmate serving such sentence when the inmate has exhausted his direct appeal rights and is proceeding under the Post Conviction Relief Act.

Commonwealth v. Cunningham , 51 A.3d 178 (Order) (Pa. 2012).[1] The PCRA court stayed petitioner's PCRA case pending the Supreme Court of Pennsylvania's decision in Cunningham. See Order dated Oct. 17, 2012 (State Court Docket (C.P. Lanc.) No. CP-36-CR-0003556-2007) (Resp. Ex. S).[2]

In their response, respondents state as follows: "This may be a case... where it would be proper to stay and hold the proceedings in abeyance so that Petitioner will not run afoul of the federal statute of limitations." (Resp. at 8 (citation omitted).)

II. DISCUSSION

Generally, the federal court will not consider the merits of a habeas corpus petition unless the petitioner has complied with the exhaustion requirements of 28 U.S.C. § 2254(b)(1)(A). Exhaustion requires that the petitioner give the state courts an opportunity to review and correct alleged violations of a prisoner's federal rights before seeking relief in the federal courts. Baldwin v. Reese , 541 U.S. 27, 29 (2004) (citing Duncan v. Henry , 513 U.S. 364, 365 (1995)). The Supreme Court has approved the use of stay and abey procedures for habeas petitions containing unexhausted claims where "there was good cause for the petitioner's failure to exhaust his claims first in state court." Rhines v. Weber , 544 U.S. 269, 277 (2005). By staying the federal habeas proceeding rather than dismissing it, a petitioner can complete the state procedures necessary to comply with the exhaustion requirements without the need to refile the habeas petition at a point in time that might be outside of the statute of limitations. 28 U.S.C. § 2244(d). The three requirements for a stay set forth in Rhines are: good cause, potentially meritorious claims, and a lack of intentionally dilatory or abusive litigation tactics. Rhines , 544 U.S. at 277-78.

Petitioner's habeas petition should be stayed and held in abeyance pending the conclusion of the state court PCRA proceedings. Because the habeas petition includes the same Eighth Amendment claim as in the pending PCRA petition, it contains an unexhausted claim.[3] Petitioner had good cause for not previously raising a constitutional challenge pursuant to Miller, because the case was decided only recently on June 25, 2012. The Eighth Amendment claim is not "plainly meritless" given the Supreme Court's decision in Miller. It is undisputed that petitioner was under the age of eighteen at the time of his crime and that he received a life sentence without the possibility of parole. See Miller 132 S.Ct. at 2460. Thus, petitioner's invocation of Miller appears to have merit, and it is both necessary and appropriate that his claim be considered first by the state courts. See Graham v. Florida , 560 U.S. 48, ___, 130 S.Ct. 2011, 2030 (2010) ("It is for the State, in the first instance, to explore the means and mechanisms for compliance."). Finally, there is no evidence petitioner engaged in intentionally dilatory litigation tactics. Rather, on July 30, 2012, only a few weeks after the Supreme Court's decision, petitioner filed a pro se motion for leave to amend the PCRA petition alleging, inter alia, that his sentence violates the rule announced in Miller. (Resp. Ex. Q.) Counsel filed an Amended PCRA Petition on August 9, 2012 also raising the Miller claim. (Resp. Ex. R.) Furthermore, respondents do not oppose a stay of proceedings.

Petitioner's habeas petition, however, "should not be stayed indefinitely." Rhines , 544 U.S. at 277. Reasonable time limits should be placed "on a petitioner's trip to state court and back." Id. at 278. The stay of petitioner's habeas proceedings should be conditioned on him notifying the federal court within thirty (30) days of the conclusion of his state court proceedings. Id . (suggesting thirty day time period in this situation). If petitioner fails to so notify the court, the stay and abeyance should be vacated and the petition dismissed without prejudice.[4]

III. RECOMMENDATION

For all the above reasons, the court makes the following:

RECOMMENDATION

AND NOW, this 23rd day of October, 2013, the court respectfully recommends that the instant habeas case be stayed and placed in abeyance until the completion of the pending state court proceedings. Petitioner shall monitor this case and notify the federal court within thirty (30) days of the conclusion of the state court proceedings. Respondents need not file an answer and memorandum of law in response to the habeas petition until further order of the court. It is further recommended that there is no probable cause to issue a certificate of appealability.[5]

The court notes that petitioner's memorandum of law attached to the habeas petition appears to be missing the second page. Paragraph 2 begins at the bottom of the first page of the memorandum, and paragraph 9 begins at the top of the second page. Petitioner should file a complete copy of his memorandum of law with the court.

Petitioner may file objections to this Report and Recommendation. See Loc. R. Civ. P. 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.

ORDER

AND NOW, this day of ___, 2013, upon careful and independent consideration of the pleadings and record herein, and after review of the Report and Recommendation of United States Magistrate Judge Thomas J. Rueter, it is hereby

ORDERED

1. The Report and Recommendation is APPROVED and ADOPTED.

2. The above captioned habeas case is stayed and shall be held in abeyance until the resolution of pending related state court proceedings.

3. Petitioner shall monitor the state court proceedings and shall notify this court within thirty (30) days of the conclusion of his state court proceedings. Failure to so notify the court may result in dismissal of the petition for a writ of habeas corpus without prejudice.

4. Petitioner's request for appointment of counsel is DENIED without prejudice.

5. Petitioner shall file a complete copy of his memorandum of law with the court.

6. A certificate of appealability shall not be issued.


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