PORTER v. WETZEL et al

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE RUETER. IT IS FURTHER ORDERED THAT THE PETITION FOR LEAVE OF THE COURT TO HOLD AEDPA HABEAS CORPUS PETITION IN ABEYANCE UNTIL EXHAUSTION ISSUE IF FULLY LITIGATED IN STATE COURT IS GRANTED . IT IS FURTHER ORDERED THAT THE PETITION FOR HABEAS CORPUS RELIEF IS STAYED AND ALL PROCEEDINGS ARE HELD IN ABEYANCE, ETC. IT IS FURTHER ORDERED THAT PETITIONER'S REQUEST FOR APPOINTMENT OF COUNSEL IS DENIED WITHOUT PREJUDICE TO RENEW HIS REQ UEST AFER THIS MATTER IS REMOVED FROM CIVIL SUSPENSE AND RETURNED TO ACTIVE STATUS. IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL PLACE THIS MATTER IN CIVIL SUSPENSE UNTIL FURTHER ORDER OF COURT. IT IS FURTHER ORDERED THAT PETITIONER SHALL NO TIFIY THE COURT WITHIN 45 DAYS FOLLOWING THE CONCLUSION OF HIS STATE COURT PROCEEDINGS. FAILURE TO DO SO MAY RESULT IN DISMISSAL OF THIS WITHIN PETITION. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 5/20/14. 5/21/14 ENTERED AND COPIES MAILED TO PRO SE', ATTORNEY GENERAL OF PA AND E-MAILED.(ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
FRED PORTER,

)
)
Petitioner,
)
)
v.
)
)
)
JOHN E. WETZEL,
)
Secretary Pennsylvania
)
Department of Corrections and )
THE ATTORNEY GENERAL OF THE
)
STATE1 OF PENNSYLVANIA,
)
)
Respondents
)

Civil Action
No. 13-cv-03420

O R D E R
NOW, this 20th day of May, 2014, upon consideration of
the following documents:
(1)

Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody,
which petition is dated June 10, 2013 and was
filed on June 17, 2013;2

(2)

Petition for Leave of the
Habeas Corpus Petition in
Exhaustion Issue is Fully
Court, which petition was
June 17, 2013;

Court to Hold AEDPA
Abeyance Until
Litigated in State
filed by petitioner

1
Although Pennsylvania is a Commonwealth, the preprinted form for
the Eastern District of Pennsylvania habeas corpus petition provided to, and
completed by, petitioner (Form PAE AO 241) states that one of the respondents
is “The Attorney General of the State of ______” followed by a blank in which
petitioner typed “Pennsylvania”.
2

Mr. Porter’s original petition for writ of habeas corpus was filed
on June 17, 2013. However, the petition itself indicates that it was signed
by petitioner on June 10, 2013. Thus, giving petitioner the benefit of the
prison mailbox rule, (See Burns v. Morton, 134 F.3d 109 (3d Cir. 1998) and
Rule 3(d) of the Rules Governing Section 2254 Cases in the United States
District Courts), I consider June 10, 2013 the filing date of Mr. Porter’s
original petition.

(3)

Response to Petition for Writ of Habeas
Corpus, which response was filed September 5,
2013;

(4)

Report and Recommendation of United States
Magistrate Judge Thomas J. Rueter dated and
filed September 17, 2013;

it appearing that as of the date of this Order no objections have
been filed to the Report and Recommendation of Magistrate Judge
Rueter; it further appearing after review of this matter that
Magistrate Judge Rueter’s Report and Recommendation correctly
determined the legal and factual issues presented in the petition
for habeas corpus relief,
IT IS ORDERED that Magistrate Judge Rueter’s Report and
Recommendation is approved and adopted.
IT IS FURTHER ORDERED that the Petition for Leave of
the Court to Hold AEDPA Habeas Corpus Petition in Abeyance Until
Exhaustion Issue is Fully Litigated in State Court is granted.
IT IS FURTHER ORDERED that the petition for habeas
corpus relief is stayed and all proceedings are held in abeyance
until conclusion of petitioner’s state court proceedings and the
final decision of the United States Supreme Court whether to
grant the petition for certiorari filed February 24, 2014 in
Commonmwealth v. Cunningham, ___ Pa. ___, 81 A.3d 1 (2013) or
otherwise to resolve the question of the retroactive application
of the holding in Miller v. Alabama, ___ U.S. ___,
132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) that the sentence of a

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juvenile to life without parole violates Amendment VIII to the
United States Constitution.3
IT IS FURTHER ORDERED that petitioner’s request for
appointment of counsel is denied without prejudice to renew his
request after this matter is removed from civil suspense and
returned to active status.4
IT IS FURTHER ORDERED that the Clerk of Court shall
place this matter in civil suspense until further Order of court.
IT IS FURTHER ORDERED that petitioner shall notify the
court within 45 days following the conclusion of his state court

3

By Order dated January 28, 2013 and subsequent to the issuance of
Magistrate Judge Rueter’s Report and Recommendation in this case, Chief Judge
Petrese B. Tucker of the United States District Court for the Eastern District
of Pennsylvania placed all habeas petitions in civil suspense raising the
issue of a petitioner’s right to retroactive application of the holding in
Miller, supra.
4

On page 26 of his within petition for habeas corpus relief,
petitioner seeks appointment of counsel. Rule 8 of the Rules Governing
[28 U.S.C.] Section 2254 Cases in the United States District Courts provides
that counsel should be appointed in habeas corpus cases only when an
evidentiary hearing has been ordered or where the interests of justice so
require. I do not intend to Order a hearing in this matter at this time.
Moreover, after review of petitioner’s underlying habeas corpus petition, I
conclude that the interests of justice do not require appointment of counsel
in this case at this time because petitioner has more than adequately set
forth his claims in his petition filed June 17, 2013.
However, petitioner’s request for appointment of counsel is denied
without prejudice to renew his request after this matter is removed from civil
suspense and returned to active status.

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proceedings.

Failure to do so may result in dismissal of the

within petition.
BY THE COURT:

/s/ JAMES KNOLL GARDNER
James Knoll Gardner
United States District Judge

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