United States District Court, E.D. Pennsylvania
May 21, 2014
FRED PORTER, Petitioner,
JOHN E. WETZEL, Secretary Pennsylvania Department of Corrections and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
JAMES KNOLL GARDNER, District Judge.
NOW, this 20th day of May, 2014, upon consideration of the following documents:
(1) Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, which petition is dated June 10, 2013 and was filed on June 17, 2013;
(2) Petition for Leave of the Court to Hold AEDPA Habeas Corpus Petition in Abeyance Until Exhaustion Issue is Fully Litigated in State Court, which petition was filed by petitioner June 17, 2013;
(3) Response to Petition for Writ of Habeas Corpus, which response was filed September 5, 2013;
(4) Report and Recommendation of United States Magistrate Judge Thomas J. Rueter dated and filed September 17, 2013;
it appearing that as of the date of this Order no objections have been filed to the Report and Recommendation of Magistrate Judge Rueter; it further appearing after review of this matter that Magistrate Judge Rueter's Report and Recommendation correctly determined the legal and factual issues presented in the petition for habeas corpus relief,
IT IS ORDERED that Magistrate Judge Rueter's Report and Recommendation is approved and adopted.
IT IS FURTHER ORDERED that the Petition for Leave of the Court to Hold AEDPA Habeas Corpus Petition in Abeyance Until Exhaustion Issue is Fully Litigated in State Court is granted.
IT IS FURTHER ORDERED that the petition for habeas corpus relief is stayed and all proceedings are held in abeyance until conclusion of petitioner's state court proceedings and the final decision of the United States Supreme Court whether to grant the petition for certiorari filed February 24, 2014 in Commonmwealth v. Cunningham, ___ Pa. ___ , 81 A.3d 1 (2013) or otherwise to resolve the question of the retroactive application of the holding in Miller v. Alabama, ___ U.S. ___ , 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) that the sentence of a juvenile to life without parole violates Amendment VIII to the United States Constitution.
IT IS FURTHER ORDERED that petitioner's request for appointment of counsel is denied without prejudice to renew his request after this matter is removed from civil suspense and returned to active status.
IT IS FURTHER ORDERED that the Clerk of Court shall place this matter in civil suspense until further Order of court.
IT IS FURTHER ORDERED that petitioner shall notify the court within 45 days following the conclusion of his state court proceedings. Failure to do so may result in dismissal of the within petition.