ADAMS v. WENEROWICZ et al

Filing 14

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; PETITIONER'S OBJECTIONS ARE OVERRULED; THE REVISED PETITION FOR WRIT OF HABEAS CORPUS IS DENIED AND DISMISSED WITH PREJUDICE; A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE AND THE CLERK OF COURT SHALL MARK THIS CASE CLOSED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 12/19/13. 12/19/13 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GARLAND ADAMS,
Plaintiff,
v.
MICHAEL WENEROWICZ, et al.,
Defendants.

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CIVIL ACTION
NO. 13-3538

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O R D E R

AND NOW, this 18th day of December, 2013, after review of
the Report and Recommendation of United States Magistrate Judge
Henry S. Perkin (ECF No. 10) and Petitioner’s objections thereto
(ECF No. 13),1 it is hereby ORDERED as follows:
(1) The Report and Recommendation is APPROVED and ADOPTED;
(2) Petitioner’s Objections to the Report and Recommendation
are OVERRULED;2

1

The Court undertakes a de novo review of the portions
of the Report and Recommendation to which a party has objected.
See 28 U.S.C. § 636(b)(1) (2012); Cont’l Cas. Co. v. Dominick
D’Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998). The Court “may
accept, reject or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1).
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Magistrate Judge Perkin recommends denying Petitioner’s
§ 2254 petition for a writ of habeas corpus because the petition
is untimely under the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). Report & Recommendation 4, ECF No. 10
(citing 28 U.S.C. § 2244(d)(1)). Pursuant to the AEDPA, “a state
prisoner ordinarily has one year to file a federal petition for
habeas corpus, starting from ‘[t]he date on which the judgment
became final by the conclusion of direct review or the expiration

of the time for seeking such review.’” McQuiggin v. Perkins, 133
S. Ct. 1924, 1929 (2013) (quoting 28 U.S.C. § 2244(d)(1)(A)).
Here, because Petitioner’s judgment of sentence became final
before the AEDPA’s effective date, he had until April 23, 1997,
to file his federal habeas petition, absent any statutory or
equitable tolling. Magistrate Judge Perkin concludes that
Petitioner is not eligible for any tolling of the limitations
period, and thus that his petition is untimely, as it was filed
on June 19, 2013.
Petitioner argues that he is entitled to statutory
tolling on two grounds: (1) his petition was filed within one
year of the new rule of law announced by the Supreme Court in
Miller v. Alabama, 132 S. Ct. 2455 (2012); and (2) it is based on
predicate facts that were unavailable at the time of his trial.
Pet’r’s Resp. 6, ECF No. 13; see also Revised Pet. 8, 17, ECF No.
4. Petitioner further contends that, even if his petition would
ordinarily be barred by the AEDPA’s one-year statute of
limitations, it should be permitted here because he has a tenable
claim of actual innocence. Pet’r’s Resp. 3, 8.
Turning first to Petitioner’s Miller v. Alabama
argument, it is true that a petitioner can bring an otherwise
time-barred claim if he does so within one year of “[t]he date
when the constitutional right asserted was initially recognized
by the Supreme Court.” 28 U.S.C. § 2244(d)(1)(B). In Miller,
the Supreme Court held for the first time 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.’” 132 S. Ct. at 2460. Although Petitioner
was 18 years and 4 months old at the time of his crime, he
contends that he was still clearly an “adolescent” at that time,
and thus that he should be able to assert the right recognized in
Miller. Pet’r’s Resp. 24.
Petitioner’s contention that he is no different from
the adolescent offender in Miller is compelling. As he rightly
notes, the Supreme Court has agreed that “drawing the line at 18
years of age is subject to the objections always raised against
categorical rules,” and “[t]he qualities that distinguish
juveniles from adults do not disappear when an individual turns
18.” Pet’r’s Resp. 15 (quoting Roper v. Simmons, 543 U.S. 551,
574 (2005)). But, in the very same paragraph, the Court went on
say that “a line must be drawn,” however categorical that line
may be, and 18 years of age “is the point where society draws the
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line for many purposes between childhood and adulthood.” Roper,
543 U.S. at 574. In Miller, the Court adhered to that
categorical approach, explicitly holding that mandatory life
without parole violates the Eighth Amendment “for those under the
age of 18 at the time of their crimes.” 132 S. Ct. at 2460.
Petitioner does not claim that he was under 18 at the time of his
offense, and so he is not asserting the constitutional right
recognized in Miller. Instead, as Magistrate Judge Perkin
explains, he is arguing that the law established in Miller
“should be extended to persons over the age of 18.” Report &
Recommendation 8. Therefore, irrespective of the underlying
merits or persuasiveness of Petitioner’s argument, the Miller
decision does not give Petitioner a basis for avoiding the
statute of limitations.
Next, Petitioner contends that he is entitled to
statutory tolling under 28 U.S.C. § 2244(d)(1)(D), which allows a
petitioner to file a petition within one year of “[t]he date on
which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due
diligence.” He argues that the claim he asserts in his petition
– namely, that his sentence of mandatory life without parole
violates the Eighth and Fourteenth Amendments because of his age
at the time of his offense – is predicated upon newly discovered
science and social science evidence regarding the diminished
culpability of juveniles. Pet’r’s Resp. 6. In support of that
contention, he cites extensively to the research on adolescent
brain development discussed in Roper v. Simmons and in Graham v.
Florida, 560 U.S. 48 (2010). See Pet’r’s Resp. 14-23.
Accepting for the sake of argument that the scientific
studies and social science evidence Petitioner identifies could
constitute the “factual predicate” referred to in the AEDPA,
Petitioner’s contention still fails, as more than one year has
passed since that evidence was described at length in Roper and
Graham. As the Third Circuit has explained, “[s]ection
2244(d)(1)(D) provides a petitioner with a later accrual date
than section 2244(d)(1)(A) only if vital facts could not have
been known.” Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004)
(internal quotation marks omitted). Here, all of the “new facts”
Petitioner identifies were discussed either in Roper, which was
decided on March 1, 2005, or in Graham, which was decided on July
6, 2010. Therefore, even if such generalized information could
constitute a “factual predicate” under the AEDPA, that
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(3) The Revised Petition for a Writ of Habeas Corpus (ECF
information was reasonably knowable to Petitioner more than one
year prior to the filing of his petition.
Finally, the Court turns to Petitioner’s contention
that the AEDPA’s statute of limitations does not serve as a
barrier to relief in this case because he has a tenable claim of
actual innocence. In support of that proposition, he cites to
the Supreme Court’s recent decision in McQuiggin v. Perkins, 133
S. Ct. 1924 (2013), in which the Court held that “a credible
showing of actual innocence may allow a prisoner to pursue his
constitutional claims notwithstanding the existence of a
procedural bar to relief,” including the AEDPA’s one-year
limitations period. Id. at 1931. To make use of that exception
to the statute of limitations, “a petitioner must show that it is
more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.” Schlup v. Delo,
513 U.S. 298, 327 (1995); see also McQuiggin, 133 S. Ct. at 1928
(citing the Schlup standard).
Here, Petitioner does not claim that he is innocent of
the acts with which he was charged; rather, he claims that
“developments in scientific brain evidence persuasively show[]
that he is not guilty of the crime of murder but is guilty of the
lesser crime of voluntary manslaughter.” Pet’r’s Resp. 2
(emphasis added). Assuming that a person can be considered
“actually innocent” of an offense while admitting guilt to a
lesser included offense, Petitioner has not shown that “no
reasonable juror would have found [him] guilty” of murder in
light of the scientific developments he describes. See Schlup,
513 U.S. at 327. At best, he has shown that adolescents
generally lack the maturity and sense of responsibility necessary
to achieve the requisite mens rea for murder. While that
evidence might give jurors pause when assessing a youthful
defendant’s guilt, it does not suggest that no adolescent
offenders are capable of murder. In other words, even if a jury
credited all of Petitioner’s evidence, that jury could still
reasonably find beyond a reasonable doubt that a particular
adolescent offender is guilty of murder. Therefore, as
Petitioner presents no evidence specific to his personal level of
culpability, he has failed to show that no reasonable juror would
have found him guilty, and thus he has not made a “credible
showing of actual innocence.” See McQuiggin, 133 S. Ct. at 1931.
4

No. 4) is DENIED and DISMISSED WITH PREJUDICE;
(4) A certificate of appealability shall not issue; and
(5) The Clerk shall mark this case CLOSED.

AND IT IS SO ORDERED.

/s/ Eduardo C. Robreno
EDUARDO C. ROBRENO,
J.

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