MCFADDEN v. WETZEL et al

Filing 8

ORDER THAT JUDGE SITARSKI'S REPORT AND RECOMMENDATIONS IS APPROVED AND ADOPTED; MCFADDEN'S PETITION FOR HABEAS CORPUS IS STAYED PENDING THE OUTCOME OF THE POST-CONVICTION RELIEF ACT PROCEEDINGS; MCFADDEN AND RESPONDENTS SHALL NOTIFY THIS COURT WITHIN TWO WEEKS OF THE CONCLUSION OF MCFADDEN'S STATE PROCEEDINGS AND INFORM THE COURT OF THE STATUS OF HIS HABEAS PETITION AT THAT POINT; AND THE CLERK OF COURT SHALL TRANSFER THIS CASE FROM THE COURT'S ACTIVE DOCKET TO OUR CIVIL SUSPENSE DOCKET.. SIGNED BY HONORABLE STEWART DALZELL ON 10/22/13. 10/22/13 ENTERED AND COPIES MAILED TO PRO SE .(lvj, ) Modified on 10/22/2013 (lvj, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL MCFADDEN
v.
JOHN E. WETZEL, et al.

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CIVIL ACTION

NO. 13-2956

ORDER
AND NOW, this 22nd day of October, 2013, upon
consideration of petitioner Michael McFadden’s pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket
entry # 1), our Order referring this matter to the Honorable
Lynne A. Sitarski for a report and recommendation (docket entry
# 6), and Judge Sitarski’s report and recommendation (“R&R”)
(docket entry # 7), to which neither party has filed an
objection within the period specified by Loc. R. Civ. P. 72.1 IV
(b), and the Court finding that:
(a)

McFadden was arrested and charged with murder,

robbery, and related offenses on July 7, 1989, based on events
that took place on March 24, 1989, R&R at 1;
(b)

McFadden was born on November 11, 1971, and he

was thus seventeen when the crime occurred, see Court of Common
Pleas of Philadelphia County, Criminal Docket No. CP-51CR0722542-1989; R&R at 5 n.5;

(c)

On June 25, 2012, the United States Supreme Court

decided Miller v. Alabama, 132 S. Ct. 2455 (2012), in which it
held that “mandatory life without parole for those under the age
of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual punishments’”, id.
at 2460;
(d)

On July 13, 2012, McFadden filed a pro se PCRA

petition arguing that his life sentence violated Miller’s
prohibition on mandatory sentences of life without parole for
juveniles, R&R at 2, and this petition is currently pending in
the Philadelphia Court of Common Pleas, id.;
(e)

Because his petition is still pending, McFadden

has not exhausted his state claims, and we thus lack
jurisdiction to hear his habeas petition, see, e.g., O’Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999); 28 U.S.C. §
2254(b)(1)(A);
(f)

The Pennsylvania Supreme Court has not yet

decided whether Miller applies retroactively to those whose
sentences became final before the decision, but the Pennsylvania
Supreme Court is considering the retroactivity question in

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Commonwealth v. Cunningham, No. 38 EAP 2012, which was argued on
September 12, 2012 and is currently pending;
(g)

Judge Sitarski recommends staying the case

pursuant to Rhines v. Weber, 544 U.S. 269, 277-78 (2005), which
allowed for a stay where a petition contains both exhausted and
unexhausted claims, and Heleva v. Brooks, 581 F.3d 187 (3d Cir.
2009), in which our Court of Appeals held that courts may stay
petitions containing only unexhausted claims;
(h)

As our Court of Appeals has explained, under

Rhines, we may stay a habeas proceeding where “(1) good cause
exists for the petitioner’s failure to exhaust his claims; (2)
the unexhausted claims are not plainly meritless; and (3) the
petitioner has not engaged in dilatory or abusive tactics”,
Grundy v. Pennsylvania, 248 Fed. App’s 448, 451 (3d Cir. 2007)
(citing Rhines, 544 U.S. at 277-78);
(i)

Here, Judge Sitarski found that there was good

cause for petitioner’s failure to exhaust his claims because
“the Miller case was not decided until June, 2012, only one
month before he filed an amended PCRA petition adding a claim
based on Miller”, R&R at 5;

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(j)

Our understanding of the good cause assessment is

that we are to determine not whether McFadden had good cause for
failing to pursue his claim earlier, but whether he has good
cause for failing to exhaust his state claim before bringing the
instant habeas petition;
(k)

Here, where the failure to exhaust arises out of

McFadden’s failure to wait until the court decided his PCRA
petition before filing this habeas petition, we cannot attribute
the failure to exhaust to the recency of the Miller decision;
(l)

However, because McFadden proceeds pro se, and in

light of the other two prongs of the Rhines inquiry, we find
that good cause exists for the confusion that resulted in his
failure to complete the PCRA process before submitting this
habeas petition;
(m)

With regard to the next factor -- whether

McFadden’s unexhausted claims are “plainly meritless” -- we find
that they are not as we agree with Judge Sitarski that “if it is
determined that Miller should apply retroactively, it would
appear to apply in Petitioner’s case, as it appears he was a
juvenile when he committed the crime and received a mandatory
life sentence without the possibility of parole”, R&R at 4-5;
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(n)

Finally, we agree with Judge Sitarski’s

conclusion that there is nothing to suggest that McFadden has
engaged in dilatory or abusive tactics, particularly in light of
the fact that he brought the Miller claim in his PCRA petition
shortly after the United States Supreme Court decided the case;
and
(o)

We will therefore stay McFadden’s case pending

the outcome of his state PCRA proceedings;
It is hereby ORDERED that:
1.

Judge Sitarski’s report and recommendation

(docket entry # 7) is APPROVED and ADOPTED;
2.

McFadden’s petition for habeas corpus (docket

entry # 1) is STAYED pending the outcome of the Post-Conviction
Relief Act proceedings;
3.

McFadden and Respondents shall notify this Court

within two weeks of the conclusion of McFadden’s state
proceedings and inform the Court of the status of his habeas
petition at that point; and

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4.

The Clerk of Court shall TRANSFER this case from

the Court’s Active docket to our Civil Suspense docket.
BY THE COURT:
/s/ Stewart Dalzell, J.

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