COHEN v. LANE et al

Filing 17

MEMORANDUM OPINION & ORDER re 9 MOTION to Dismiss re 2 Brief in Support - Other, 1 Petition for Writ of Habeas Corpus filed by JAY LANE, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA that motion be granted, petition be dismissed and certificate of appealability be denied. Signed by Magistrate Judge Robert C. Mitchell on 11/02/2016. (Mitchell, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANDRE COHEN, CB-9486,
Petitioner,

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v.
JAY LANE, et al.,
Respondents.

2:16-cv-1295

MEMORANDUM and ORDER
Presently before the Court for disposition is respondents' Motion to Dismiss (ECF No.9).
For the reasons set forth below, the motion will be granted, and because reasonable jurists could
not conclude that a basis for appeal exists, a certificate of appealability will be denied.
Andre Cohen an inmate at the State Correctional Institution – Fayette has presented a
petition for a writ of habeas corpus which he has been granted leave to prosecute in forma
pauperis. Cohen is presently serving a life sentence imposed on May 17, 1993 following his
conviction by a jury of criminal homicide at CP-02-CR-3563-1992 in the Court of Common
Pleas of Allegheny County, Pennsylvania.
While the procedural background is lengthy and convoluted, in its November 10, 2015
Memorandum, the Superior Court citing the post-conviction court wrote:
[Appellant] was convicted of second[-] degree murder and sentenced to life
in prison. He was 19 years old at the time he committed the crime. His
sentence was affirmed by [this Court] on September 4, 1996[.] A few
months later, our state [S]upreme [C]ourt denied review. Two previous
efforts at post-conviction relief were denied.
The Court then continued:
On August 8, 2012, Appellant filed a pro se PCRA petition claiming his sentence
for life without parole was unconstitutional in light of the United States Supreme
Court decision in Miller v. Alabama, 132 S.Ct. 2455 (2012) [holding at p. 2460
"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'"]…
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In an order file on January 8, 2015, the PCRA court denied relief. .. In its
subsequent opinion … the trial court concluded that Miller was inapplicable to
Appellant because that case held it unconstitutional to sentence juveniles to life
imprisonment without the possibility of parole, but Appellant was 19 years-old
when he committed the second-degree murder…
Miller does not create a newly recognized constitutional right that can serve as
the basis for relief for "those over the age of 18 at the time they commit murder."
Here, Appellant was nineteen years old at the time he committed murder. Thus,
Miller is inapplicable and cannot provide Appellant relief.1
The Pennsylvania Supreme Court denied allowance of appeal on March 23, 2016.2
On August 25, 2016 Cohen submitted a petition to this Court contending he is entitled to
habeas corpus relief on the following grounds:
[Denial] of equal protection based on the decision [in Miller] made retroactive by
Montgomery [v. Louisiana, 136 S.Ct. 718,736 (2016)]. Specifically he contends:
Appellant's life sentence without the possibility of parole is unconstitutional under
The Eighth Amendment of the United States Constitution as well as Article 1,
Section 13 of the Pa. Constitution.
Petitioner is entitled to equal protection in accords with the 14th Amendment of
the United States [Constitution], because he is similarly situated to juvenile
lifers.3
Miller was determined to be retroactive in Montgomery which was decided on January
25, 2016. Cohen sought to raise the Miller issue in his third post-conviction petition on August
8, 2012. That petitioner was rejected by the post-conviction and Superior Court which concluded
that as a matter of law Miller was not applicable.
The problem with seeking to raise the Miller issue is that its holding is inapplicable to the
petitioner since by his own admission he was "19 years old when he committed his crime of
homicide " (ECF No. 15 p.1). This admission is supported by the record.4

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See; Exhibit 52 to the response at pp. 441-447 as replaced by ECF No. 16-1.
See: Exhibit 55 to the response at pp.469-470.
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See: Petition at ¶12.
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See also: The Superior Court adopted the finding of the post-conviction court that at the time of the offense Cohen
was over eighteen years of age and this factual conclusion is presumed correct here. 28 U.S.C. §2254(e)(1). In
addition, the unredacted docket sheet reflects that the petitioner was born on March 17, 1972 and that the charged
offense occurred on February 19, 1992 making him nineteen years of age at the time of the offense.
https://ujsportal.pacourts.us. at CP-02-CR-3563-1992.
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A Rule 12(b)(6) motion to dismiss is appropriate where it is alleged that the petition fails
to state a claim upon which relief may be granted. That is "to survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that
is plausible on its face" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Under the facts of the
instant petition, there is no way that amendment will in any way change the fact that because
petitioner was over the age of 18 at the time he committed the instant offense, he is not entitled
to relief under Miller. For this reason, his conviction was not secured in any manner contrary to
the laws of the United States as determined by the Supreme Court nor involved an improper
implementation of those laws.
Accordingly, the instant motion will be granted, and because reasonable jurists could not
conclude that a basis for appeal exists, a certificate of appealability will be denied.
An appropriate Order will be entered.
Filed: November 2, 2016

s/ Robert C. Mitchell
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANDRE COHEN, CB-9486,
Petitioner,
v.
JAY LANE, et al.,
Respondents.

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2:16-cv-1295

ORDER
AND NOW, this 2nd day of November, 2016, for the reasons set forth in the foregoing
Memorandum, the defendants' Motion to Dismiss (ECF No.9) is GRANTED, and the petition of
Andre Cohen for a writ of habeas corpus (ECF No. 1) is DISMISSED, and because reasonable
jurists could not conclude that a basis for relief exists, a certificate of appealability is DENIED.
If the petitioner seeks to appeal this decision, he must do so within thirty (30) days by
filing a notice of appeal pursuant to Rule 4(a), F.R.App.P.
s/ Robert C. Mitchell
United States Magistrate Judge

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