BUTLER v. WETZEL et al

Filing 11

ORDER THAT JUDGE STRAWBRIDGE'S REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; BUTLER'S PETITION FOR A WRIT OF HABEAS CORPUS IS DENIED; FOR THE REASONS SUMMARIZED ABOVE, WE DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY; AND THE CLERK OF COURT SHALL CLOSE THIS CASE STATISTICALLY. SIGNED BY HONORABLE STEWART DALZELL ON 2/6/14. 2/7/14 ENTERED AND COPIES MAILED TO THE PLAINTIFF AND EMAILED TO COUNSEL.(jaa, ) Modified on 2/7/2014 (jaa, ).

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

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CIVIL ACTION

NO. 13-3265

ORDER
AND NOW, this 6th day of February 2014, upon consideration of petitioner
Nathaniel Butler’s pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket
entry # 1), our July 29, 2013 Order referring this matter to the Honorable David R. Strawbridge
for a report and recommendation (docket entry # 5), defendants’ response (docket entry # 9), and
Judge Strawbridge’s report and recommendation (“R&R”) (docket entry # 10) to which neither
party has filed an objection within the period specified by Loc. R. Civ. P. 72.1 IV (b), and the
Court agreeing with Judge Strawbridge that (1) Butler does not fall within the potential ambit of
Miller v. Alabama, 132 S.Ct. 2455 (2012) because he was over 19 years old when he committed
the crime for which he was convicted and (2) his meritless petition should not be stayed pending
the exhaustion of his Miller claim in state court, and the Court finding that:
(a)

Local Appellate Rule 22.2 of the Rules of the United States Court of

Appeals for the Third Circuit provides that “at the time a final order denying a habeas petition . .
. is issued, the district court judge will make a determination as to whether a certificate of
appealability should issue”;
(b)

Such a certificate should issue only if the petitioner demonstrates that

“reasonable jurists could debate” whether the petition states a valid claim for the denial of a
constitutional right, Slack v. McDaniel, 529 U.S. 473, 484 (2000); and

(c)

We do not believe that reasonable jurists could debate that Miller applies

only to juveniles and is therefore inapplicable to Butler’s claims;
It is hereby ORDERED that:
1.

Judge Strawbridge’s report and recommendation (docket entry # 10) is

APPROVED and ADOPTED;
2.

Butler’s petition for a writ of habeas corpus is DENIED;

3.

For the reasons summarized above, we DECLINE to issue a certificate of

appealability; and
4.

The Clerk of Court shall CLOSE this case statistically.
BY THE COURT:

/s/ Stewart Dalzell, J.

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