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Johnson v. Kerestes

United States District Court, Eastern District of Pennsylvania

February 27, 2014

KERESTES, et al., Respondents.



Before the Court for Report and Recommendation is the pro se petition of Samuel Johnson for the issuance of a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Johnson is currently incarcerated in the State Correctional Institute - Mahanoy in Frackville, Pennsylvania, serving a life sentence following a 1971 first-degree murder conviction in the Philadelphia Court of Common Pleas. In light of the fact that we find his petition to raise a claim that is unexhausted, we recommend that it be dismissed.


Johnson was convicted on May 13, 1971 of first-degree murder, burglary, aggravated robbery, and conspiracy to commit these crimes. (Pet. at 4; Resp. at 1.) His convictions arose from an incident that occurred on September 12 or 13, 1970. (Resp. at 1; St. Ct. Dkt. [Resp. Ex. B] at 2; Commonwealth Ltr. Br. to Pa. Super. Ct. at 1, No. 173 Phila. 1991 (June 12, 1991) [Resp. Ex. A].) See also Commonwealth v. Johnson, 344 A.2d 485, 486-87 (Pa. 1975) (Manderino, J., dissenting) ("The prosecution's theory of guilt was one of felony-murder: that appellant was guilty of first degree murder because he participated with his cousin in the rape and robbery of the victim and because his cousin committed the homicide in furtherance of those felonies."). The prosecution apparently sought a capital sentence, which Johnson avoided. See Commonwealth v. Johnson, 305 A.2d 5, 8 (Pa. 1973) (referring to psychiatric evidence introduced "in the mitigation of the penalty" and observing that "the jury saw fit to return the verdict most favorable to the defense in this regard, life imprisonment"). In light of the first-degree murder conviction, however, Johnson received the otherwise mandatory sentence of life in prison without the possibility of parole, in addition to sentences of 10-20 years each for burglary and aggravated robbery, to run concurrent to the life sentence. His conviction was affirmed on direct appeal by the Pennsylvania Supreme Court on May 23, 1973. Commonwealth v. Johnson, 305 A.2d 5 (Pa. 1973). Johnson did not seek certiorari in the United States Supreme Court. (Pet. at 6.)

Shortly thereafter, on August 29, 1973, Johnson sought relief under Pennsylvania's Post Conviction Hearing Act ("PCHA") on claims of ineffective assistance of trial counsel. The PCHA Court denied relief, and the Pennsylvania Supreme Court affirmed on October 3, 1975. Commonwealth v. Johnson, 344 A.2d 485 (Pa. 1975). Some ten years later, he again sought relief, filing another pro se PCHA petition raising an ineffectiveness claim. The court again denied relief, and the Superior Court affirmed. Commonwealth v. Johnson, No. 173 Phila. 1991, 599 A.2d 701 (Pa. Super. Ct. July 26, 1991) (Table) [Resp. Ex. A].

The record before us does not indicate any other challenges to Johnson's conviction or sentence until approximately August 15, 2012, when he filed a petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"). (Pet. at 6; St. Ct. Dkt. at 3.) That petition sought relief from his sentence of life imprisonment without the possibility of parole based upon Miller v. Alabama, 567 U.S. - (June 25, 2012). (Pet'r Br. in Supp. of PCRA, appended to Doc. 1.) The Common Pleas docket reflects that the case went into "PCRA - Initial Review Status" on November 27, 2012. (St. Ct. Dkt. at at 4.) It remains pending there. (Pet. at 10; St. Ct. Dkt. at 4.)

Johnson submitted a pro se Petition for a Writ of Habeas Corpus in this Court on June 19, 2013, seeking habeas relief on the single ground that "Petitioner's rights were violated when he received a mandatory life without parole sentence." (Pet. at 8, H 12, Ground One.) In support of his claim he contends that "Petitioner was 18 years old when crime was com[m]itted and he falls under the juvenile status according to Miller v. Alabama." (Id.) In a memorandum of law appended to his petition, he argued:

On June 25, 2012, the United States Supreme Court decided Miller v. Alabama and Jackson v. Hobbs, holding that it violates the Eight[h] Amendment to the United States Constitution to sentence a juvenile to a mandatory life term. Petitioner was just over the age of a juvenile at the time of the commission of his crime and the social science that the Supreme Court relied on to decide Miller/Hobbs[] places Petitioner in the category of a juvenile; being though Petitioner's brain couldn't have matured that much in the days after his 18th birthday compared to that of someone who was days younger than he was.

(Pet'r Br. at 2 (emphasis in original).) He also requested a stay of proceedings pending the outcome of his PCRA petition. (Id. at 4.) At our direction, the District Attorney filed a response to the petition. Operating under the misapprehension that "Petitioner state[d] that he was under 18 at the time of the crime, " (Resp. at 1), [2] Respondents took the position that they would "not oppose" a stay of the federal petition pending completion of his state proceedings on his unexhausted Miller claim. (Resp. at 2, 5-6.) Johnson did not file any reply to the response.


The nature of Johnson's petition gives rise to several possible avenues for disposition. His petition is subject to dismissal on procedural grounds, both for failure to exhaust state court remedies and given his failure to bring his petition in a timely manner.[3] Alternatively, his petition could be denied on the merits.

In light of the fact that Respondents' response did not give Petitioner notice of the untimeliness of his petition, we focus our discussion below on the exhaustion deficiency, which was a defect identified by Respondents, even as they acceded to the requested stay. See Resp. at 2, 4. In explaining why a stay is not appropriate in this case, however, we necessarily touch upon some of the issues pertinent to the merits of Johnson's claim for relief.

A. Johnson's claim is not exhausted

As noted by Respondents in their Response, Johnson's petition is subject to dismissal for failure to exhaust available state remedies. With limited exceptions, petitioners may not obtain habeas relief in federal court without first exhausting the remedies available in the state courts as to that ground for relief. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement obligates Johnson to pursue his claim through one complete round of the established appellate review process, which in Pennsylvania means that he must bring the claim to the Pennsylvania Superior Court. It is uncontested that his 2012 PCRA petition raised a Miller ...

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