WALTON v. FOLINO et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 4/13/17. 4/13/17 ENTERED AND COPIES E-MAILED. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANTHONY RASHAN LEWIS
WILLIAMS J. WOLFE, et al.
RODNEY LEE WALTON
LOUIS FOLINO, et al.
April 13, 2017
Before the court are the motions by respondents for a
stay pending appeal of this court’s orders dated March 30, 2017.
In those orders, this court conditionally granted the petitions
of Anthony Rashan Lewis and Rodney Lee Walton for writs of
habeas corpus under 28 U.S.C. § 2254 and ordered petitioners
released from custody unless they are resentenced on or before
July 31, 2017.
Petitioners, who were co-defendants, were convicted of
second degree murder in the Court of Common Pleas of Lancaster
County, Pennsylvania and sentenced in 1997 to life imprisonment
without the possibility of parole.
Both were 17 years old and
thus juveniles on May 22, 1996, the date of the murder.
been advised that they were taken into custody shortly after the
crime took place and have been in custody ever since.
In Miller v. Alabama, 132 S. Ct. 2455 (2012), the
Supreme Court of the United States held that it is a violation
of the Eighth Amendment’s prohibition against cruel and unusual
punishment to impose a mandatory life sentence without the
possibility of parole on a person who was a juvenile at the time
of the commission of the crime. 1
The Court was particularly
offended that under this rigid sentencing scheme the sentencing
court does not take into consideration the individual history
and circumstances of the juvenile to be sentenced.
explained, ”given all we have said . . . about children’s
diminished culpability and heightened capacity for change, we
think appropriate occasions for sentencing juveniles to this
harshest possible penalty will be uncommon.”
Id. at 2469.
Court in effect ruled that it was unconstitutional to take a
“one size fits all” approach.
Lewis and Walton were sentenced long before the
Supreme Court’s decision in Miller.
In Montgomery v. Louisiana,
136 S. Ct. 718 (2016), the Supreme Court applied Miller
retroactively and thus made it applicable to petitioners.
1. The Eighth Amendment to the Constitution provides:
“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”
U.S. Const. amend. VIII. The prohibition against cruel and
unusual punishments applies to the states through the Due
Process Clause of the Fourteenth Amendment. Robinson v.
California, 370 U.S. 660, 666 (1962).
Near the end of 2013, the Court of Appeals for the
Third Circuit granted motions of Lewis and Walton to file a
second or successive petition under 28 U.S.C. § 2254 on the
basis that they had made a prima facie showing that they were
entitled to relief under Miller.
Anthony Rashan Lewis,
No. 13-1225 (3d Cir. Dec. 12, 2013); In re:
No. 13-2652 (3d Cir. Dec. 31, 2013).
Rodney Lee Walton,
The matters were stayed
pending a decision by the Supreme Court in Montgomery.
In post-conviction proceedings in Lancaster County,
the Common Pleas Court on April 13, 2016 granted the petitions
of Walton and Lewis for relief and scheduled the resentencings
on November 1 and November 2, 2016, respectively.
As a result,
this court granted a stay of their § 2254 petitions on April 20,
2016 based on assurances that the resentencings would take place
on the scheduled dates in early November.
to this court, the District Attorney of Lancaster County on
May 17, 2016 obtained a stay from the Court of Common Pleas of
the November 1 and 2, 2016 resentencings pending the decision of
the Pennsylvania Supreme Court in Commonwealth v. Batts,
135 A.3d 176 (Pa. 2016).
Argument took place in the
Pennsylvania Supreme Court in Batts on December 7, 2016.
Commonwealth v. Batts, No. 45 MAP 2016, at *9 (Pa. April 19,
No decision has yet been handed down.
That case involves a 14 year old, Qu’eed Batts, who
was convicted of a first degree murder and sentenced to a
mandatory life sentence in 2007 without the possibility of
After a number of trips to the Pennsylvania Superior
and Supreme Courts, he is still under the same mandatory life
See Commonwealth v. Batts, 974 A.2d 1175 (Pa. Super. Ct.
2009); Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013); Commonwealth
v. Batts, 125 A.3d 33, 35 (Pa. Super. Ct. 2015); Commonwealth v.
Batts, 135 A.3d 176 (Pa. 2016).
On April 19, 2016 the
Pennsylvania Supreme Court granted Batts’ petition for allowance
of appeal on the following issues:
(1) In Miller v. Alabama, the U.S. Supreme
Court outlawed mandatory life without parole
for juveniles (LWOP), and instructed that
the discretionary imposition of this
sentence should be ‘uncommon’ and reserved
for the ‘rare juvenile offender whose crime
reflects irreparable corruption.’
(i) There is currently no procedural
mechanism to ensure that juvenile LWOP
will be ‘uncommon’ in Pennsylvania.
Should this Court exercise its
authority under the Pennsylvania
Constitution to promulgate procedural
safeguards including (a) a presumption
against juvenile LWOP; (b) a
requirement for competent expert
testimony; and (c) a ‘beyond a
reasonable doubt’ standard of proof?
(ii) The lower court reviewed
Petitioner’s sentence under the
customary abuse of discretion standard.
Should the Court reverse the lower
court’s application of this highly
deferential standard in light of
(2) In Miller, the U.S. Supreme Court stated
that the basis for its individualized
sentencing requirement was Graham’s
comparison of juvenile LWOP to the death
penalty. The Petitioner received
objectively less procedural due process than
an adult facing capital punishment. Should
the Court address the constitutionality of
the Petitioner’s resentencing proceeding?
Commonwealth v. Batts, 135 A.3d 176 (Pa. 2016).
Whether or not the decision of the Pennsylvania
Supreme Court will resolve all the procedural issues for the
resentencings of Lewis and Walton to the satisfaction of the
respondents is open to question.
On January 23, 2017, after this court learned that the
state court had delayed the resentencings, it ordered the
respondents to file responses to the petitioners’ applications
for relief under § 2254.
On March 29, 2017, this court held
oral argument on the applications.
The Supreme Court handed down its decision in Miller
in 2012 and its decision in Montgomery on January 25, 2016.
is now well over fourteen months since the Supreme Court ruled
that persons such as Lewis and Walton who are serving
unconstitutional sentences are entitled to new sentencing
In the interest of federalism, this court accepted
the word of the state authorities that resentencings would take
place on November 1 and 2, 2016 and deferred to the state
The resentencings, as noted above, have now
been indefinitely stayed without notice to this court.
The respondents, of course, cannot assure this court
when the resentencings will take place.
circumstances, we cannot stand idly by while procrastination
prevails in Lancaster County.
Awaiting a decision by the
Pennsylvania Supreme Court in Batts, which may or may not
clarify the procedure under state law for resentencing in these
cases, cannot be used as an excuse to thwart a ruling of the
United States Supreme Court and petitioners’ constitutional
right to be protected against the infliction of cruel and
The Commonwealth cannot delay the
resentencings because it says it cannot figure out what state
procedure to follow in doing so.
Otherwise, a state could
always circumvent a United States Supreme Court ruling.
argument, the Assistant District Attorney conceded that other
counties in Pennsylvania including Lehigh, Philadelphia, and
York are proceeding with resentencings in similar cases without
waiting for a decision in Batts.
There is no just reason why
Lancaster County should not follow the example of other
Pennsylvania counties to say nothing of the mandate of the
United States Supreme Court. 2
There is a presumption in favor of the release of a
prisoner pending review of a decision on a habeas petition
ordering his or her release.
See Fed. R. App. P. 23(c).
considering this presumption, the court must take into account
the usual factors governing the issuance of a stay.
“(1) whether the stay applicant has made a strong showing that
he is likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether issuance
of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest
Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
habeas context, the Supreme Court also requires us to consider
the risk that the prisoner will be a flight risk or pose a
danger to the public if released.
Id. at 777.
There is no dispute that the merits strongly favor
Lewis and Walton.
Respondents concede they are entitled to be
2. In an exhibit to his brief in opposition to the respondents’
motion for a stay pending appeal, petitioner Lewis has attached
a list of twenty counties of Pennsylvania which are proceeding
with or have completed resentencing hearings. They are: Adams,
Allegheny, Chester, Crawford, Dauphin, Delaware, Fayette,
Indiana, Lebanon, Lehigh, Mercer, Monroe, Northampton,
Philadelphia, Susquehanna, Tioga, Venango, Westmoreland,
Wyoming, and York.
resentenced under Miller and Montgomery. 3
Nor has the
Commonwealth shown that it will be irreparably injured absent a
Clearly the public interest lies in upholding the Eighth
Amendment to the Constitution which prohibits cruel and unusual
The only issue is the timing of the new sentencing
This court has granted the Commonwealth a generous
four months to do what is required.
do not say in their motions for stay that resentencing cannot be
accomplished by July 31, 2017.
This time interval mitigates
against any risks from premature release of the petitioners, who
have been incarcerated since they were 17 years old and have
already served over twenty years in prison.
If some unforeseen and compelling reason arises, a
party may apply for further relief from this court.
request for delay to await the decision in Batts or for some
other meritless reason will not be accepted.
We assume and
fully expect that Lancaster County will provide petitioners
expeditiously with the necessary resources for investigation and
3. Respondents argue that Lewis and Walton have failed to
exhaust their state court remedies in seeking habeas relief.
They offer no support for this claim and have even conceded that
Lewis and Walton are entitled to be resentenced. The argument
that Lewis and Walton have failed to exhaust their state court
remedies is totally without merit.
experts so that meaningful resentencing hearings can take place
by the July 31, 2017 deadline.
The respondents here are simply seeking to delay
without justification the constitutional right of Lewis and
Walton to be resentenced.
Montgomery is enough.
More than a year of delay since
It is time to get on with it.
Accordingly, the motions of respondents for a stay
pending appeal will be denied.
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