United States District Court, Eastern District of Pennsylvania
Enclosed herewith please find a copy of the Report and Recommendation filed by United States Magistrate Judge Strawbridge, on this date in the above captioned matter. You are hereby notified that within fourteen (14) days from the date of service of this Notice of the filing of the Report and Recommendation of the United States Magistrate Judge, any party may file (in duplicate) with the clerk and serve upon all other parties written objections thereto (See Lxjcal Civil Rule 72.1 IV (b)). Failure of a party to file timely objections to the Report & Recommendation shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court Judge.
In accordance with 28 U.S.C. §636(b)(1)(B), the judge to whom the case is assigned will make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. The judge may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge, receive further evidence or recommit the matter to the magistrate judge with instructions.
Where the magistrate judge has been appointed as special master under F.R.Civ.P 53, the procedure under that rule shall be followed.
REPORT AND RECOMMENDATION
DAVID R. STRAWBRIDGE UNITED STATES MAGISTRATE JUDGE
Before the Court is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Daniel White, who is currently incarcerated at the State Correctional Institution Forest in Marienville, Pennsylvania. For the reasons that follow, we recommend that the petition be stayed pending the state courts' consideration of his claim relying on the United States Supreme Court's recent decision in Miller v. Alabama, 132 S.Ct. 2455 (2012).
I. FACTS AND PROCEDURAL HISTORY
White was convicted on October 16, 1991 in the Philadelphia Court of Common Pleas of one count of second-degree murder and related charges arising out of an incident that occurred on July 6, 1990. (Typed Pet. at 1; Form. Pet. at 4-5, Ans. at 1.) White alleges that he was born on July 3, 1974 and thus was sixteen years old at the time he committed these offenses. (Form Pet. at 18.) Upon his conviction, the trial court imposed the mandatory sentence on the second-degree murder conviction of a term of life imprisonment without the possibility of parole. (Form Pet. at 4, 8; Ans. at 1.) He did not file a direct appeal at that time. At some later date, not apparent from the dockets, he filed a petition pursuant to Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. §§ 9541, et seq. ("PCRA"), which was dismissed by the PCRA Court in 2001. The Pennsylvania Superior Court and Pennsylvania Supreme Court did not disturb that decision. See St. Ct. Dkt., Pa. Super. Ct. No. 901 EDA 2001 (reflecting decision issued Feb. 26, 2002); St. Ct. Dkt., Pa. S.Ct. No. 125 EAL 2002 (reflecting denial of allowance of appeal on Aug. 9, 2002). White initiated a number of other PCRA actions that were also dismissed, some of which he also appealed unsuccessfully to the Superior Court. See Form Pet. at 5-6.
White filed another PCRA petition on or about June 11, 2010. See St. Ct. Dkt. at 15. That petition went into "PCRA - Initial Review Status" with the court on June 16, 2010. Id. Although White filed amended petitions, various motions, and "supplemental filings" in support of his petition, the state court docket does not reflect any further action taken by the court. See Id . at 15-16. On March 22, 2011, he sought, unsuccessfully, to appeal to the Superior Court the PCRA Court's lack of action on his petition, which he suggested could be deemed to be a denial. See Doc. 7 at 3 & Ex. A.
On or about July 16, 2012, White filed an Amended pro se PCRA petition, this time asserting that his sentence to life imprisonment without the possibility of parole for a murder committed as a juvenile was unconstitutional, relying upon Miller v. Alabama, 132 S.Ct. 2455 (June 25, 2012). See St. Ct. Dkt. at 16 (noting "PCRA - Amended PCRA Petition Filed / Miller Claim"). The docket indicates he filed some sort of amended petition on December 6, 2013, as well as a motion for leave to supplement his petition. (Id.) His PCRA petitions remain pending before the PCRA Court.
White sought federal review of his sentence in light of Miller on May 19, 2013, when he submitted a typed, pro se petition to this Court, (Typed Pet., Doc. 1), followed by a petition on this district's required forms on June 20, 2013 (Form Pet., Doc. 3). Upon referral from the Honorable Stewart Dalzell for preparation of a Report and Recommendation, we directed the Philadelphia District Attorney's Office to file a response to the petition. In their response filed on August 29, 2013, Respondents contend that the Court cannot grant the requested relief because White has not satisfied the exhaustion requirement. (Resp. at 4.) In light of his pending application for relief on the Miller claim in the PCRA Court, however, Respondents will "not oppose a stay of this proceeding until after the conclusion of state court review" of the pending PCRA petition. (Id.) White has filed a "Response to the State[']s Request for a Stay and Abeyance, " in which he argues that he should be excused from the exhaustion requirement due to the state court's inaction on his PCRA petitions.
Absent unusual circumstances, the federal court will not consider the merits of a habeas corpus petition unless the petitioner has complied with the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A). Exhaustion requires that the petitioner give the state courts an opportunity to review and correct his allegations of error before he seeks relief in the federal court. See, e.g., Baldwin v. Reese, 541 U.S. 27, 29 (2004). The governing statute further provides that a habeas petitioner is not in compliance with this exhaustion requirement "if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c).
The Eighth Amendment Miller claim that White identifies is clearly unexhausted, as the issue raised is still before the PCRA Court in the amended petition filed on July 16, 2012. The parties ...