United States District Court, M.D. Pennsylvania
D. MARIANI, UNITED STATES DISTRICT JUDGE
October 4, 2011, Wilson Hernandez filed a Petition for a Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1),
which he subsequently amended on February 16, 2012 (Doc. 5).
Petitioner subsequently filed a Motion to Amend Petition for
Writ of Habeas Corpus Filed Pursuant to 28 U.S.C. § 2254
(Doc. 22) requesting that he be granted leave to amend his
Petition to include a claim that his sentence of life without
parole violated his Constitutional rights under the Eighth
and Fourteenth Amendments.
2, 2019, Magistrate Judge Carlson issued a Report and
Recommendation ("R&R") (Doc. 28) recommending
that Petitioner's Motion to Amend be denied and that his
Petition for Writ of Habeas Corpus also be denied. Petitioner
filed Objections to the Magistrate's R&R (Docs. 29,
de novo review of Magistrate Judge Carlson's
R&R (Doc. 28), Petitioner's Objections thereto (Docs.
29, 30), and all relevant filings, the Court will overrule
the Objections and adopt the pending R&R.
District Court may "designate a magistrate judge to
conduct hearings, including evidentiary hearings, and to
submit to a judge of the court proposed findings of fact and
recommendations for the disposition" of certain matters
pending before the Court. 28 U.S.C. § 636(b)(1)(B). If a
party timely and properly files a written objection to a
Magistrate Judge's Report and Recommendation, the
District Court "shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made." Id. at § 636(b)(1)(C); see
also, Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011);
M.D. Pa. Local Rule 72.3.
Petitioner raises two Objections to the Magistrate
Judge's R&R: (1) that his "separate sentences of
life without parole (LWOP) for second-degree murder and
aggregate term of 9-18 years for robbery and conspiracy is an
illegal sentence that violated Petitioner's rights under
the Fourteenth Amendment"; and (2) that his sentence of
life without parole is unconstitutional. (See Docs. 29, Doc.
respect to Petitioner's assertion that his separate
sentences constituted an "illegal sentence", the
R&R properly determined that the claim was unexhausted
and procedurally defaulted (Doc. 28, at 21)(see 42 Pa.C.SA
§ 9544(b)). In his Objections, Hernandez does not assert
that the Magistrate Judge erred in stating that he did not
present this claim in his first PCRA petition, but rather
that "a challenge to the legality of a sentence cannot
be waived and may be raised at any time in the adversarial
proceedings." (Doc. 30, at 3). Such an argument, that a
prisoner may challenge his sentence on a basis raised for the
first time on a habeas petition in federal court, runs afoul
of the very strictures of habeas relief. As explained by the
Supreme Court, "[b]efore a federal court may grant
habeas relief to a state prisoner, the prisoner must exhaust
his remedies in state court. In other words, the state
prisoner must give the state courts an opportunity to act on
his claims before he presents those claims to a federal court
in a habeas petition." O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). A claim has been
exhausted when it has been "fairly presented" to
the state court. Picard v. Connor, 404 U.S. 270, 275
(1971). This means that the federal habeas claim "must
be the substantial equivalent of that presented to the state
courts." Lambert v. Blackwell, 134 F.3d 506,
513 (3d Cir. 1997). Here, Hernandez did not raise his claim
of an "illegal sentence" in his first PCRA
petition, and the state court was thus not afforded an
opportunity to review or act upon this claim. Nor does
Petitioner assert in his Objections that there is any basis
for a finding by this court that his procedural default
should be excused.
second Objection, that his sentence is
"disproportionate" and that he "should be
allowed to argue in this federal habeas proceeding that the
rights established in Miller v. Alabama, 132 S.Ct.
2455 (2012), and Montgomery v. Louisiana. 136 S.Ct.
718 (2016), apply to him" (Doc. 30, at 4) also does not
afford Petitioner relief. As Magistrate Judge Carlson noted,
Petitioner unsuccessfully raised this same argument in his
third PCRA petition. There, the Superior Court of
Pennsylvania, in affirming the PCRA court's order,
... Hernandez claims that the Supreme Court's holding in
Miller prohibits the imposition of a mandatory life
sentence in his case because "[a]ll of the
characteristics and circumstances attendant to his youth did
not disappear when [he] turned 18." PCRA Petition,
9/5/12, at 8a. However, as both the PCRA court and counsel
properly conclude, the high court's ruling in
Miller applies solely to defendants who had not
reached the age of majority, or 18 years of age, at the time
they committed their crime, and this Court has previously
declined to extent [sic] PCRA relief under
Miller to defendants 18 years of age and older.
See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.
Super. 2013) (contention that a newly-recognized
constitutional right should be extended to others does not
render their petition timely pursuant to section
9545(b)(1)(iii)). Accordingly, Miller is
inapplicable to Hernandez's case and the PCRA court
properly dismissed his petition as untimely.
(Doc. 27-4, at 69). Just as in the Pennsylvania state courts,
as the R&R correctlt explains, federal "courts in
this circuit have consistently declined to extend
Miller to convicted offenders who were eighteen at
the time they committed the offense for which they were
convicted." (Doc. 28, at 27-28) (collecting
cases). The Court agrees with the R&R's
conclusion that Miller has no application to adult
offenders such as Hernandez (id. at 28), and that
Petitioner's request to amend his § 2254 Petition to
include this claim would be futile in so much as the argument
"fails on its merits."
foregoing reasons, as well as those set forth in the R&R
(Doc. 28), the Court will overrule Petitioner's
Objections, adopt the pending R&R, and thus deny Wilson
Hernandez's Motion to Amend Petition for Writ of Habeas
Corpus Filed Pursuant to 28 U.S.C. § 2254 and his
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
 Petitioner's reliance on Cruz
v. United States, an unpublished opinion from the
District Court of Connecticut is without any precedential, or
persuasive, value here. In Cruz, the District Court
granted a request for habeas relief to a petitioner who was
serving a life sentence for killing two individuals when he
was just over eighteen years old. 2018 WL1541898 (D.Conn.
2018). Nonetheless, a year after the District Court's
decision in Cruz, the Second Circuit (of which the
District of Connecticut belongs), in a separate action found
that defendants there, who were between the ages of 18 and 22
years old at the time of their crimes, were not entitled to
relief from their mandatory life sentences on the basis of
Miller. As explained by the Second Circuit,
"'a line must be drawn,' and the Supreme Court
has repeatedly chosen in the Eighth Amendment context to draw
that line at the age of 18, which 'is the point where
society draws the line for many purposes between childhood
and adulthood'" and therefore "[s]ince the
Supreme Court has chosen to draw the constitutional ...