Wang v. United States of America
ORDER -- For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, the parties shall brief the following issues: (1) whether Miller creates a new substantive rule that applies retroactively on collateral review to juveniles sentenced to life i mprisonment without parole; and (2) why the Court should not stay this case pending the U.S. Supreme Court's decision in Montgomery v. Louisiana 2015 WL 1280236 (U.S. Mar. 23, 2015). The parties shall file their briefs by May 15, 2015 and immediately thereafter provide two hard copies of their briefs to chambers. The Court shall set the date for oral argument in a separate order. SO ORDERED by Judge Dora Lizette Irizarry on 4/30/2015. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
DORA L. IRIZARRY, United States District Judge:
On October 2, 1992, petitioner Joseph Wang (“Petitioner”) was sentenced to four terms
of life in prison on four counts of conviction. On June 20, 2013, Petitioner filed a motion
pursuant to 28 U.S.C. §2255 seeking to vacate his sentence on the ground that it violated the
United States Supreme Court’s ruling in Miller v. Alabama, 132 S. Ct. 2455 (2012). (See
generally Motion to Vacate, Set Aside or Correct Sentence, Docket Entry No. 1.) As this was
not Petitioner’s first motion pursuant to Section 2255, on June 20, 2013, he also filed a motion in
the United States Court of Appeals for the Second Circuit for an order authorizing this Court to
consider his successive petition. See 28 U.S.C. §§ 2244(b), 2255(h).
On July 16, 2013, the Second Circuit granted Petitioner’s motion and directed this Court
“to address, as a preliminary inquiry under § 2244(b)(4), whether the United States Supreme
Court’s decision in Miller announced a new rule of law made retroactive to cases on collateral
review, and thus permits Petitioner’s new § 2255 claim to proceed.” Wang v. United States,
2013 U.S. App. LEXIS 20386 (2d Cir. July 16, 2013) (unpublished); (USCA Order, Docket
Entry No. 4.)
On July 17, 2013, Petitioner filed an amended motion pursuant to Section 2255,
contending that Miller applies retroactively. (See Am. Pet. for Writ of Habeas Corpus, Docket
Entry No. 5.)
The government does not oppose this motion, also asserting that Miller is
retroactive, and, as such, Petitioner’s sentence as imposed is unconstitutional, requiring he be
resentenced. (See Mem. in Supp. of Pet., Docket Entry No. 10, at 2.) On September 4, 2014, the
parties notified the Court that they had reached an agreement that Miller applies retroactively, no
further briefing is required and the Amended Petition should be granted, and submitted an
executed stipulation and proposed order for this Court to endorse. (See September 4, 2014
Letter, Docket Entry No. 12.)
Upon review of the parties’ submissions, the Court has determined that further briefing
and oral argument are required. The parties are directed to brief the following issues: (1)
whether Miller creates a new rule that applies retroactively on collateral review to juveniles
sentenced to life imprisonment without parole; and (2) why the Court should not stay this case
pending the Supreme Court’s decision in Montgomery v. Louisiana, 2015 WL 1280236 (U.S.
Mar. 23, 2015), which shall determine the very issue before this Court. The Court requires the
additional submissions due to developments in the law subsequent to the parties’ previous
First, there has been substantial disagreement among federal circuit and district courts
about the retroactive application of Miller to cases on collateral review. As a result, the Court
has serious reservations about the permissibility or prudence of accepting the parties’ consent to
resentencing, as stipulated by them in Docket Entry 12. The Court’s hesitation is supported by
the fact that: (a) the Second Circuit expressly remanded this matter for this Court’s determination
of the issue; and (b) every federal circuit court to decide this issue directly has held that the
Miller rule is not retroactively applicable. See Martin v. Symmes, 2015 WL 1514721, at *3 (8th
Cir. Apr. 6, 2015) (“Because Miller ‘is a new procedural rule that is not of watershed magnitude,
it cannot be applied retroactively to’ Martin under the Teague exceptions.”) (citing Burton v.
Fabian, 612 F.3d 1003, 1011 (8th Cir. 2010)); Johnson v. Ponton, 780 F.3d 219, 226 (4th Cir.
2015) (“We therefore hold that the Supreme Court has not held the Miller rule retroactively
applicable, and that the Court’s holdings do not dictate retroactivity because the rule is neither
substantive nor a watershed rule of criminal procedure”); In re Morgan, 713 F.3d 1365, 13671368 (11th Cir. 2013) reh’g en banc denied, 717 F.3d 1186, 1187 (11th Cir. 2013) (holding that
(1) “the Supreme Court has not held that Miller is retroactively applicable to cases on collateral
review,” and (2) “Miller changed the procedure by which a sentencer may impose a sentence of
life without parole on a minor,” but it did not create a substantive rule prohibiting “a certain
category of punishment for a class of defendants because of their status or offense”); Craig v.
Cain, 2013 WL 69128, at *1 (5th Cir. Jan. 4, 2013) (finding that Miller does not meet one of the
two Teague exceptions) (per curiam) (unpublished).
While no federal appellate court has yet to find Miller retroactive on collateral review,
the U.S. Courts of Appeal for the First, Second, Third, and Fifth Circuits have authorized
successive habeas corpus petitions on the ground that Miller provides sufficient support for a
prima facie case of retroactivity. See Evans-Garcia v. United States, 744 F.3d 235, 238 (1st Cir.
2014) (“We need not answer [the question of whether Miller is retroactive] because the
government has also conceded that Miller has been made retroactive, at least under the prima
facie standard.”); In re Simpson, 555 Fed. Appx. 369, 371 & n.2, 372 (5th Cir. 2014) (per
curiam) (acknowledging Craig and deciding “not [to] resolve the ultimate issue of the
retroactivity of Miller,” but granting leave to file successive habeas petition based on prima facie
finding that Miller is retroactive); Wang v. United States, 2013 U.S. App. LEXIS 20386 (2d Cir.
July 16, 2013) (unpublished); In re Pendleton, 732 F.3d 280, 283 (3d Cir. 2013) (“[W]e conclude
that Petitioners have made a prima facie showing that Miller is retroactive.”).
Additionally, several federal district courts have concluded that the Miller rule applies
retroactively as a new substantive rule. See, e.g., Songster v. Beard, 35 F. Supp. 3d 657, 663
(E.D. Pa. 2014) (“The Miller rule has both substantive and procedural elements. Substantively, it
bans mandatory life without parole sentences for juvenile homicide defendants. Procedurally, it
mandates a minimal process for sentencing those in that class of defendants. The former is a
new substantive rule of criminal law. The latter is an implementation of the substantive rule.”) 1;
Alejandro v. United States, 2013 WL 4574066, at *1 (S.D.N.Y. Aug. 22, 2013) (“Because Miller
announced a new rule of constitutional law that is substantive rather than procedural, that new
rule must be applied retroactively on collateral review.”); Hill v. Snyder, 2013 WL 364198, at *2
n2 (E.D. Mich. Jan. 30, 2013) (holding that Miller rule is retroactive to 42 U.S.C. § 1983
plaintiffs who challenged the constitutionality of a Michigan statute prohibiting Michigan parole
board from considering for parole those sentenced to life in prison for first-degree murder). 2
Second, on March 23, 2015, the Supreme Court granted a petition for a writ of certiorari
in Montgomery v. Louisiana to decide whether its ruling in Miller applies retroactively. 2015
WL 1280236 (U.S. Mar. 23, 2015). Because Montgomery involves the same question of law as
the present case, principles of judicial economy appear to strongly favor a stay of this action
pending the Supreme Court’s resolution of this issue.
This Court has authority to stay
The district court’s order currently is on appeal before the Third Circuit Court of Appeals. See Songster v. Beard,
Docket No. 12-3941 (3rd Cir. 2012).
After an interlocutory appeal by the defendants, the Sixth Circuit Court of Appeals ordered a stay of the district
court’s order, which would have required parole hearings for approximately 360 Michigan juveniles now serving
life sentences for murder with no possibility of parole. See Maxey v. Snyder, Docket No. 13-2661, Docket Entry No.
30 (6th Cir. Dec. 23, 2013). The defendants requested that the Sixth Circuit refrain from deciding the interlocutory
appeal, while maintaining a stay of the district court’s order, until the Supreme Court decides Montgomery v.
Louisiana. The Sixth Circuit has yet to issue a decision regarding any of these issues.
proceedings pending disposition of another case that could affect the outcome. See Louis Vuitton
Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 96 (2d Cir. 2012) (“‘[T]he power to stay
proceedings is incidental to the power inherent in every court to control the disposition of the
causes on its docket with economy of time and effort for itself, for counsel, and for litigants.’”
(quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936))).
For the reasons set forth above, the parties shall brief the following issues: (1) whether
Miller creates a new substantive rule that applies retroactively on collateral review to juveniles
sentenced to life imprisonment without parole; and (2) why the Court should not stay this case
pending the Supreme Court’s decision in Montgomery v. Louisiana. The parties shall file their
briefs by May 15, 2015. The Court shall set the date for oral argument in a separate order.
Dated: Brooklyn, New York
April 30, 2015
DORA L. IRIZARRY
United States District Judge
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