United States District Court, E.D. Pennsylvania
REPORT AND RECOMMENDATION
DAVID R. STRAWBRIDGE, Magistrate Judge.
Before the Court for Report and Recommendation is the pro se petition of Nathaniel Butler for the issuance of a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Butler is currently incarcerated in the State Correctional Institute in Coal Township, Pennsylvania, serving a life sentence following a first-degree murder conviction on September 20, 1991 in the Philadelphia Court of Common Pleas. In light of the fact that we find his petition to raise a claim that is untimely and unexhausted, we recommend that it be dismissed.
I. PROCEDURAL BACKGROUND
Butler was convicted of first degree murder, two counts each of aggravated assault and recklessly endangering another person, criminal conspiracy to commit these acts, and possession of an instrument of crime. His convictions arose from an incident on May 19, 1990, when Butler and two conspirators drove to a local playground and shot at a group in retaliation for an earlier dispute, killing one man and seriously injuring two others. Pursuant to state law, Butler's sentence for that degree of murder was mandatory: life in prison without the possibility of parole. Accordingly, he was sentenced on September 20, 1991 to a term of life imprisonment for the murder conviction, and after post-trial motions were denied, he was sentenced on March 26, 1992 to a consecutive term of five to twenty years for the other crimes. The Superior Court affirmed his conviction, and the Pennsylvania Supreme Court denied his petition for allowance of appeal on April 6, 1993. See Commonwealth v. Butler, No. 01364 Phila. 1992 620 A.2d 1232 (Pa.Super. Ct. Nov. 18, 1992); Commonwealth v. Butler, No. 0787 E.D. 1992, 620 A.2d 1232 (Pa. Apr. 6, 1993). He did not seek certiorari in the United States Supreme Court. (Form Pet. at 6.)
On or about, August 21, 2012, Butler filed a pro se petition in state court, for relief under the Post Conviction Review Act, raising a claim that it is unlawful under, inter alia, the United States Constitution "to sentence a juvenile to life imprisonment without the possibility of parole." (Form Pet. at 6, ¶ 11(a)(5). That petition is still pending at the trial court level. (Form Pet. at 9; Resp. at 2.)
Butler submitted a pro se Petition for a Writ of Habeas Corpus in this Court on May 25, 2013 and, at the Court's direction, completed our standard form for habeas relief pursuant to 28 U.S.C. § 2254 on July 8, 2013. He seeks relief on the grounds that his "mandatory sentence of life without parole violated the Eighth Amendment's prohibition on cruel and unusual punishment; Petitioner's sentence should be vacated, and he should be individually resentenced on lesser-included offenses" (Typed Pet. at 3), or, as he succinctly puts it in his form petition, " Alabama v. Miller. " (Form Pet. at 8, ¶ 12, Ground One Supporting facts.) At our direction, the District Attorney filed a response to the petition, asserting that Butler's petition is untimely and should be dismissed. Butler has not filed a reply to that response.
The nature of Butler's petition gives rise to several possible avenues for disposition. His petition is subject to dismissal on procedural grounds, for failure to bring his petition in a timely manner and for failure to exhaust state court remedies. Alternatively, his petition could be denied on the merits. We focus our discussion below on the two procedural grounds for dismissal, although we necessarily touch upon some of the issues pertinent to the merits of Butler's claim for relief.
A. Butler's petition is not timely
Respondents challenge Butler's petition as untimely under the governing statute of limitations. As his conviction became final prior to the enactment of AEDPA, Butler had until April 23, 1997 to bring a habeas petition asserting a violation of his federal constitutional rights. He did not do so until May 25, 2013 at the earliest. He suggests that his petition is timely pursuant to 28 U.S.C. § 2244(d)(1)(C), in that it seeks relief based upon a "constitutional right [that] was initially recognized by the Supreme Court" in the Miller decision on June 25, 2012. That provision is only applicable, however, "if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Id. There is an open question as to whether that is the case. See, e.g., In re Pendleton, 732 F.3d 280 (3d Cir. Oct. 3, 2013) (permitting petitioners to bring second or successive petition raising Miller claims based upon "prima facie" showing of retroactivity but expressly reserving merits analysis for district court). Cf. Commonwealth v. Cunningham, No. 38 EAP 2012, 2013 WL 5814388 (Pa. Oct. 30, 2013) (finding that Miller has not been made retroactively applicable by the United States Supreme Court and that it is not otherwise subject to retroactive applicability under Supreme Court Teague standard).
Moreover, there is persuasive authority for the proposition that if the Miller rule does not, in fact, apply to the petitioner's situation, then it cannot provide an alternative start date for the limitations period on the petitioner's habeas petition. See, e.g., Watts v. Wetzel, Civ. A. No. 13-3518, 2013 WL 6153196, *1 n.2 (E.D. Pa. Nov. 20, 2013) (Robreno, J., approving and adopting Rep. & Recomm. of Wells, Ch. M.J.); Ocampo v. Fisher, Civ. A. No. 13-3569, 2013 WL 5658387, *3 (E.D. Pa. Oct. 17, 2013) (Yohn, J., approving and adopting Rep. & Recomm. of Rice, M.J.); Hall v. Lamas, Civ. A. No. 12-5163, 2013 WL 1187047, *1 n.5 (E.D. Pa. Feb. 7, 2013) (Rep. & Recomm. of Perkin, M.J.), approved and adopted, 2013 WL 1189242 (Bartle, J.).
Respondents have pointed to documentation that Butler's date of birth is October 18, 1970. (Resp. at 5.) See St. Ct. Dkt. at 1. The offense date was May 19, 1990. See St. Ct. Dkt. at 1; Commonwealth v. Butler, No. 01304 Phila. 1992, slip opin. at 1 (Pa.Super. Ct. Nov. 18, 1992) [Resp. Ex. A]. Pursuant to our scheduling orders, Butler was given a 30-day period in which to file a reply to the response served upon him by mail on October 11, 2013. As of the date of this Report, Butler has not filed a reply nor otherwise responded or countered in any way the representation of his date of birth. Moreover, while his Form Petition dated July 8, 2013 did not address the question of his adult status at the time of the offense, his original Typed Petition (Doc. 1) conceded that he "was arrested for a crime alleged to have been committed on May 19th 1990, when Petitioner was (19) years old." (Typed Pet. at 1, ¶ 2.) Accordingly, we operate under the presumption that Butler was not a juvenile at the time of the offense but rather was 19 years and 7 months old.
As Butler was not a juvenile at the time he committed murder in the first degree on May 19, 1990, the mandatory sentence imposed upon him of life without the possibility of parole is not implicated by the Supreme Court's Miller decision. Miller did not recognize any Eighth Amendment violation for imposition of this sentence pursuant to a mandatory sentencing scheme as to adults but rather as to juveniles, and juveniles only. Moreover, that decision grew in part out of precedents that highlighted the unique posture of juveniles in the Eighth Amendment proportionality analysis. See Miller, 132 S.Ct. at 2464 (describing Roper and Graham as establishing that "children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform... they are less deserving of the most severe punishments, '" quoting Graham, 130 S.Ct. at 2026); id. at 2463-64 (describing precedents prohibiting mandatory imposition of death penalty without requiring sentencing authority to consider defendant's individual characteristics); id. at 2464 (describing its holding as following from "the confluence of these two lines of precedent"). See also Roper v. Simmons, 543 U.S. 551 (2005) (holding that Eighth Amendment bars capital punishment for juveniles); Graham v. Florida, 130 S.Ct. 2011 (2010) (holding that Eighth Amendment bars sentencing juvenile to life without the possibility of parole for non-homicide offense).
The "right" implicated by Butler's petition - that someone who was under 25 years old at the time he commits first-degree murder should not be subjected to a mandatory sentence of life without the possibility of parole - is not one that has been recognized by the United States Supreme Court. 28 U.S.C. Section 2244(d)(1)(C) therefore provides no later limitations period start date. Accordingly, the one-year AEDPA limitations period as to any federal claim Butler wished to assert began to run with the effective date of the legislation on April 24, 1996, ...