WILCOX v. ROZUM et al

Filing 11

ORDER AS FOLLOWS: THE REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE JACOB P. HART DATED 10/16/13, IS APPROVED AND ADOPTED; PRO SE PETITIONER'S RESPONSE TO REPORT AND RECOMMENDATION ARE OVERRULED; THE PETITION UNDER 28 U.S.C. SEC. 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY FILED BY PRO SE PETITIONER IS DISMISSED AND DENIED, ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 12/20/13. 12/23/13 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANTHONY W. WILCOX,
Petitioner,

CIVIL ACTION

v.
GERALD ROZUM, Superintendent, et al,
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA, and
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents.

NO. 13-3761

ORDER
AND NOW, this 20th day of December, 2013, upon consideration of Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by pro se petitioner,
Anthony W. Wilcox, the record in this case, the Report and Recommendation of United States
Magistrate Judge Jacob P. Hart dated October 16, 2013, and Response to Report and
Recommendation filed by pro se petitioner, treated by the Court as objections to the Report and
Recommendation, IT IS ORDERED as follows:
1.

The Report and Recommendation of United States Magistrate Judge Jacob P. Hart

dated October 16, 2013, is APPROVED AND ADOPTED;
2.

Pro se petitioner’s Response to Report and Recommendation, treated by the Court

as objections to the Report and Recommendation, are OVERRULED;
3.

The Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in

State Custody filed by pro se petitioner is DISMISSED AND DENIED; and,
4.

A certificate of appealability will not issue because reasonable jurists would not

debate (a) this Court’s decision that the petition does not state a valid claim of the denial of a

constitutional right, or (b) the propriety of this Court’s procedural rulings with respect to
petitioner=s claims. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The decision of the Court is based on the following:
Petitioner claims that he is entitled to relief under Miller v. Alabama, 132 S.Ct. 2455
(2012) which prohibited the issuance of mandatory life-without-parole sentences for juvenile
offenders. First, the Court notes that petitioner was in excess of eighteen years of age at the time
of the crime at issue and is therefore not entitled to relief under Miller. Moreover, the Supreme
Court of Pennsylvania recently ruled that the United States Supreme Court decision in Miller v.
Alabama did not apply retroactively. See Commonwealth v. Cunningham, 2013 WL 5814388
(Pa.).
Petitioner relies on 28 U.S.C. §§ 2244(d) and (1)(D) and argues that the start date for his
statute of limitations is “the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.” In support of this position
petitioner states that his claim is based on “a new scientific consensus,” citing cases dealing with
diminished capacity dating back to 2002, such as Atkins v. Virginia, 536 U.S. 304 (2002). There
is absolutely no support for petitioner’s argument, and the Court rejects it.
Petitioner also argues that, although Miller v. Alabama dealt specifically with defendants
who were under the age of eighteen at the time of the crime, the decision should apply to any
individual who was between the ages of eighteen and twenty-five, such as him, because the
decision shows that a child’s biological process is not typically complete until he reaches his
mid-twenties. Contrary to petitioner’s assertion, the Supreme Court in Miller drew a clear line
that “mandatory life without parole for those under the age of eighteen at the time of their crimes
violates the Eighth Amendment,” similar to holdings in other cases involving juveniles. Miller,

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132 S.Ct. 2460 (2012); see Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183 (2005);
Graham v. Florida, 560 U.S. 348, 130 S.Ct. 2000, 2026-27 (2010). In using eighteen years of
age as the cutoff in Miller, the Supreme Court relied on its reasoning in Roper and Graham, and
the science and social science studies underlying the decisions in those cases. See Miller, 132
S.Ct. 2465 n.5. There is absolutely no authority for the proposition that the Miller reasoning
applies to all persons under age twenty-five. The Court thus rejects petitioner’s argument that he
can claim the benefit of the Miller opinion and that it provides an alternate date for the beginning
of his habeas limitations period. Ocampo v. Fisher, 2013 WL 5658387 (ED Pa.)
In sum, there are no new rights established by the United States Supreme Court which
have been made retroactively applicable to petitioner’s case. For all of the reasons stated above
the Court overrules petitioner’s objections and denies and dismisses his Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody.
BY THE COURT:
/s/ Hon. Jan E. DuBois
DuBOIS, JAN E., J.

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