McGill v. McGinley et al
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable A. Richard Caputo on 8/4/17. (ep)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
McGINLEY, et al.,
CIVIL NO. 3:CV-16-0562
The pro se Petitioner, Tito McGill, a Pennsylvania inmate has filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. McGill challenges his 1996
conviction in the Court of Common Pleas of Dauphin County, Pennsylvania, for first
degree murder. He was also convicted of aggravated assault, two counts of robbery,
reckless endangerment of another person and four counts of conspiracy. He is serving
a sentence of life.
He makes five claims in his habeas petition, all of which challenge his sentence
of life without the possibility of parole as violating the Eighth Amendment under Miller
v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).1 (ECF No. 1, Pet.)
Along with his habeas petition, Mr. McGill filed a motion to stay these
proceedings while he pursues state-court remedies challenging his mandatory life
sentence based on the Supreme Court's holdings in Miller and Montgomery. (ECF No.
2, Mot. to Stay.) The Court ordered Respondents to address the motion to stay. (ECF
No. 5, Order.) Respondents filed a Response seeking denial of the motion to stay
arguing that the “unmixed” Petition is meritless as Mr. McGill was 19 at the time of his
crimes. (ECF No. 8, Resp't Answer to Petr's Mot. to Stay.)
For the reasons set forth below, the Court will deny Mr. McGill’s motion to stay
and dismiss the Petition without prejudice due to Mr. McGill's failure to exhaust his
available state court remedies.
In June 2012, the United States Supreme Court ruled in Miller, supra, that the
imposition of a sentence of mandatory life imprisonment without possibiity of parole upon a
juvenile offender violated the Eighth Amendment to the United States Constitution. On January
25, 2016, the United States Supreme Court held that Miller’s prohibition on mandatory life
without parole for juvenile offenders announced a new substantive rule that, under the
Constitution, is retroactive in cases on state collateral review. See Montgomery v. Louisiana,
, 136 S.Ct. 18, 193 L.Ed.2d 599 (2016).
On December 14, 1995, Roberto Vasquez was shot to death in Harrisburg,
Pennsylvania. On August 9, 1996, Tito McGill was convicted by a jury of one count of
murder in the second degree, two counts of robbery, three counts of criminal
conspiracy, and one count of reckless endangerment of another person. He was
sentenced on August 27, 1996, to a term of life imprisonment. Mr. McGill was also
sentenced to an aggregate term of 26 to 52 years on the remaining charges, to run
concurrent with the sentence of life imprisonment. Commonwealth v. McGill, No. 914
C.D. 1996, 2002 WL 34400890 (Dauphin Ct. Com. Pl., Jul. 13, 2002).
Mr. McGill filed a timely direct appeal with the Superior Court of Pennsylvania,
which affirmed the judgment of sentence on March 18, 1999. Commonwealth v. McGill,
737 A.2d 1276 (Pa. Super. 1999) (Table, No. 00776 HBG 97) (unpublished
memorandum). The Pennsylvania Supreme Court denied Mr. McGill's Petition for
Allocatur on July 13, 1999. Commonwealth v. McGill, 559 Pa. 715, 740 A.2d 1145 (Pa.
1999) (Table, No. 0377 M.D. Alloc. 1999). Petitioner did not file a petition for writ of
certiorari with the United States Supreme Court.
On April 18, 2000, Mr. McGill filed his first petition for collateral relief under the
Pennsylvania Post Conviction Relief Act (PCRA). 42 PA. CON. STAT. ANN. §§ 9541 9546. On August 27, 2002 the PCRA court dismissed the petition. The superior court
The court takes judicial notice of Mr. McGill’s electronic criminal docket sheet in
Commonwealth v. McGill, CP-22-CR-0001336-1996 (Dauphin Cty Ct. C.P.), found at
denied Mr. McGill's appeal on August 6, 2003. See Commonwealth v. McGill, 833 A.2d
1148 (Pa. Super. 2003) (Table, No. 1542 MDA 2002).
Mr. McGill's petition for
allowance of appeal was denied by the Pennsylvania Supreme Court on September 23,
2004. See Commonwealth v. McGill, 580 Pa. 689, 859 A.2d 768 (Pa. 2004) (Table, No.
647 MAL 2003).
On August 13, 2012, Mr. McGill filed a second pro se PCRA petition challenging
his first-degree murder sentence of life without parole based on Miller v. Alabama, 567
U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). He filed a counseled supplemental
petition on March 14, 2016. On March 10, 2017, the PCRA court denied Mr. McGill’s
petition for post-conviction collateral relief. Petitioner filed a notice of appeal in the
Superior Court on April 27, 2017. See Commonwealth v. McGill, 708 MDA 2017 (Pa.
Super.), available at http://ujsportal.pacourts.us. Mr. McGill’s appeal of the denial of his
second PCRA is currently pending before the Pennsylvania Superior court.
The issues raised in Mr. McGill’s habeas petition exclusively deal with his belief
that Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),
invalidates his sentence of life without parole as he was a juvenile at the time he
committed the underlying offenses. Respondent argues that Mr. McGill was not a
juvenile at the time he committed murder, he was 19. (ECF No. 8, Response.) The
government also confirms that Mr. McGill’s has pending in state court a post-conviction
relief act petition which raises this legal claim and provides the state courts with the
vehicle for making factual findings on this crucial threshold question, a factual issue
which is a prerequisite to post-conviction relief under Miller and Montgomery.
A habeas petitioner challenging a state conviction must first attempt to present
his claim in state court. 28 U.S.C. § 2254(b); Harrington v. Richter, 562 U.S. 86, 103,
131 S.Ct. 770, 787, 178 L.Ed2d 624 (2011). This means that the petitioner must fully
and fairly present each federal claim through one full round of state court review before
filing a federal habeas petition. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 - 48, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999); see also Robinson v. Beard, 762 F.3d 316, 328 (3d
Cir. 2014). The purpose of the exhaustion requirement is grounded on principles of
comity in order to ensure that state courts have the initial opportunity to review federal
constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192
(3d Cir. 2000).
The exhaustion requirement is satisfied if a petitioner's claims are either
presented to the state courts directly on appeal from the judgment of sentence, or
through a collateral proceeding, such as a PCRA petition. Swanger v. Zimmerman, 750
F.2d 291, 295 (3d Cir. 1984). It is not necessary for a petitioner seeking federal habeas
relief to present his federal claims to state courts both on direct appeal and in a PCRA
proceeding. (Id.) However, a petitioner is not deemed to have exhausted the remedies
available to him if he has a right under the state law to raise, by any available
procedure, the question presented.3 See 28 U.S.C. § 2254(c); Castille v. Peoples, 489
U.S. 346, 350, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989). Consequently, as a
general rule, a federal court cannot grant habeas relief to a section 2254 petitioner
unless the petitioner has exhausted the remedies “available” in state court as to his
federal claims. See 28 U.S.C. § 2254(b)(1)(A); Slutzker v. Johnson, 393 F.3d 373, 379
(3d Cir. 2004) (citing section 2254(b)(1)(A)).
Mr. McGill's Petition will be dismissed without prejudice. In light of the Supreme
Court's decisions in Miller and Montgomery, the legal precedent which governs Mr.
McGill's second PCRA petition (and his present habeas present habeas petition) is
clearly defined. In order to qualify for relief, Mr. McGill would have to: (1) have
committed the offense as a juvenile, i.e. before he turned 18 years of age; and (2) have
received a mandatory sentence of life without parole. It is clear from the face of the
Petition, and confirmed by Respondent, and the Court that Mr. McGill filed a PCRA
petition addressing his Miller claims that overlap the issues raised in his present
The trial court ruled on his second PCRA petition in March 2017 and
Petitioner's appeal is presently pending with the Pennsylvania Superior Court. It is clear
On May 9, 2000, the Pennsylvania Supreme Court issued Order 218, which
eliminated the need of Pennsylvania criminal defendants to seek discretionary review in that
court to exhaust state court remedies. Order 218 “renders review from the Pennsylvania
Supreme Court unavailable for purposes of exhausting state court remedies under 2254(c)”.
Boyd v. Waymart, 579 F.3d 330, 368 (3d Cir. 2009) (quoted case and internal quotation marks
that the state court exhaustion of the question of whether Mr. McGill was a juvenile at
the time of his offense is both necessary and appropriate. Thus, Petitioner has not yet
exhausted his state court remedies and the Petition will be dismissed. Further, as noted
by Respondent in their response to the motion to stay, a stay in this matter is not
appropriate under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440
(2005). As the Court in Rhines determined, a stay-and-abey approach should not be
taken if the petitioner's unexhausted claim is “plainly meritless.” Id. at 277, 125 S.Ct.
at 1535. It appears that Mr. McGill, who was born on May 1, 1976, committed a murder
in December 1995. Accordingly, Mr. McGill was 19 as Respondent suggests. Mr.
McGill does not dispute that fact. Rather, he argues that the law expressed in Miller
should be extended to others, like himself, who are only slightly passed the age of
majority. (ECF No. 9, Reply.) Additionally, because Mr. McGill has not exhausted any
of the claims contained in his petition he is not in danger of losing timely exhausted
As Petitioner has clearly failed to exhaust his state court remedies, this petition
will be dismissed and the motion to stay denied. The dismissal is without prejudice to
Mr. McGill's right to pursue federal habeas corpus relief upon complete exhaustion of
his available state court remedies.
Based on the foregoing, the Court will dismiss Mr. McGill’s petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 without prejudice and deny his motion to
stay these proceedings.
A district court issuing a final order denying a § 2254 petition must also decide
whether to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011); 28 U.S.C.
§ 2253(c)(2). A court may issue a certificate of appealability only when a petitioner
makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). This showing is satisfied when the petitioner demonstrates “that jurists of
reason could disagree with the district court’s resolution of his constitutional claims or
that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct.
1029, 1034, 154 L.Ed.2d 931 (2003). The court has concluded that the instant Petition
does not warrant habeas relief. Reasonable jurists would not find this conclusion to be
debatable. Accordingly, the Court will not issue a certificate of appealability because
Mr. McGill has not made a substantial showing of the denial of his constitutional rights.
See Slack v. McDaniel, 529 U.S. 473, 483 - 84, 120 S.Ct. 1595, 1603 - 04, 146 L.Ed.2d
Mr. McGill is advised that he has the right for thirty (30) days to appeal this
court’s order denying his § 2254 petition, see 28 U.S.C. § 2253(a); Fed. R. App. P.
4(a)(1)(A), and that the court’s denial of a certificate of appealability does not prevent
him from doing so, as long as he also seeks a certificate of appealability from the Third
Circuit Court of Appeals. See FED. R. APP. P. 22; Local Rule of App. P. 22.1.
An appropriate Order follows.
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
DATE: August 4, 2017
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