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Earp v. Wetzel

United States District Court, E.D. Pennsylvania

January 23, 2017

ALAN EARP, Petitioner,
v.
JOHN E. WETZEL, et al. Respondents.

          MEMORANDUM

          KEARNEY, J.

         Almost fifty-five months ago, the United States Supreme Court held a mandatory sentence of life for a juvenile offender is unconstitutional. Almost exactly a year ago, the Supreme Court held the state courts must retroactively apply this holding to petitions for postconviction relief under state law. When, as here, a state court prisoner's habeas petition seeks release on this basis only and he is waiting for over four years for a state court judge to be assigned to his post-conviction act petition on this same constitutional basis let alone have a hearing date from an unassigned judge under established Supreme Court mandate, we find the prisoner is excused from exhausting his post-conviction act remedy before we should consider his habeas petition. The parties concede he is entitled to resentencing under Supreme Court law. It is time for resentencing required at least a year ago and we see no further basis for delay. We conditionally grant the petition for a writ of habeas corpus subject to the state court resentencing the state court prisoner over the next six months unless otherwise agreed or upon a showing of good cause.

         I. Background

         A. Mr. Earp's underlying sentence and collateral state action.

         Over twenty-five years ago, seventeen year old Alan Earp murdered another teenager after a street fight. A state court jury convicted him of murder. On November 16, 1993, the state court judge imposed the mandatory sentence of life imprisonment without parole.

         On June 25, 2012, in Miller v. Alabama, our Supreme Court held a mandatory life sentence without parole for those who committed crimes under the age of eighteen violates the Eighth Amendment's prohibition on cruel and unusual punishment.[1] Mr. Earp, recognizing the effect of Miller on his life sentence without parole, filed a Pennsylvania Collateral Relief Act ("PCRA") petition on August 13, 2012. Nothing has happened on his PCRA petition since.

         On October 25, 2012, the Commonwealth reformed sentencing for offenders who commit murder under the age of eighteen to comply with Miller.[2]On March 26, 2013, while Mr. Earp's PCRA had been pending for seven months, the Pennsylvania Supreme Court determined Miller retroactively applied to a Mr. Earp's direct appeal rights.[3]

         B. Mr. Earp's petition for a writ of habeas corpus.

         On June 13, 2013, Mr. Earp filed a pro se application to file a second habeas corpus petition with our Court of Appeals. On December 2, 2013, our Court of Appeals granted Mr. Earp's application to file a second habeas petition under 28 U.S.C. § 2244 because Miller is "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."[4] Our Court of Appeals transferred Mr. Earp's petition for writ of habeas corpus to our Court.

         On October 30, 2013, the Pennsylvania Supreme Court held Miller did not retroactively apply to post conviction collateral attacks on sentencing.[5] On January 29, 2014, Chief Judge Tucker stayed and placed Mr. Earp and similarly situated cases in suspense pending the outcome of an appeal to the United States Supreme Court.[6]

         On January 25, 2016, the United States Supreme Court held Miller is a new substantive constitutional rule and Pennsylvania must apply it retroactively on collateral review petitions effectively reversing the Pennsylvania Supreme Court's October 2013 holding.[7] During this four year evolution of constitutional law, Mr. Earp's PCRA petition remained pending. Our Supreme Court has provided the final answer: Mr. Earp's sentence is unconstitutional and his PCRA petition must be granted. Still, the PCRA state court took no action even when there is only one constitutional course of action.

         Absent months of inaction in 2016, we ordered the Commonwealth to tell us "why Mr. Earp's sentence should be immediately vacated and he be resentenced forthwith."[8] We also ordered the Federal Community Defender Office and the Commonwealth to file a statement addressing whether the stay issued in this action should be vacated.[9]

         On October 18, 2016, the Commonwealth admitted Mr. Earp "is entitled to a new sentence" but requested we continue the stay as a "protective" petition while Mr. Earp exhausts his PCRA petition at the state level.[10] On October 21, 2016, after the parties admitted Mr. Earp deserves a new constitutional sentence, we lifted the stay; removed the case from the suspense docket, and ordered the respondents to file their detailed factual statement by November 28, 2016.[11]

         II. Analysis

         We face a simple question: whether state court review of Mr. Earp's unconstitutional sentence is exhausted because of Mr. Earp's over four year and four month wait for state trial court review of his PCRA petition, almost twelve of those months spent waiting on a PCRA which will certainly be granted. If so, we can hear his petition for a writ of habeas corpus. The Commonwealth argues Mr. Earp's PCRA petition is not exhausted and we cannot grant Mr. Earp's petition for a writ of habeas corpus without violating the comity between our dual judicial systems. The Commonwealth argues to exhaust his petition, Mr. Earp must wait for a hearing before the "Court of Common Pleas, and then again on appeal to the Superior Court of Pennsylvania."[12]

         Under normal circumstances, the Commonwealth is correct. We respect the comity between our dual judicial systems, and under normal circumstances, we would wait until Mr. Earp exhausted his PCRA claim before Pennsylvania's highest court before entertaining his habeas petition.[13] Given the definite course necessary in this single issue habeas petition, the wait is inexcusable when the Court of Common Pleas has ...


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