2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-3-2013

In Re: Michael Pendleton

Precedential or Non-Precedential: Precedential

Docket No. 12-3617

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Recommended Citation

"In Re: Michael Pendleton " (2013). 2013 Decisions. Paper 7.

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PRECEDENTIAL 

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 12-3617, 12-3996 and 13-1455

In re: MICHAEL J. PENDLETON,

 Petitioner in Case No. 12-3617

In re: FRANKLIN X. BAINES, 

 Petitioner in Case No. 12-3996

In re: COREY GRANT,

 Petitioner in Case No. 13-1455
2

On Applications for Leave to File a Second or Successive 

Habeas Petition pursuant to 28 U.S.C. Section 2244(b)

No. 12-3617 related to W.D. Pa. No. 12-cv-00195 

before the Honorable Kim R. Gibson, District Judge and 

Honorable Keith A. Pesto, Magistrate Judge

No. 12-3996 related to E.D. Pa. No. 12-cv-05672 

before the Honorable Edmund V. Ludwig

No. 13-1455 related to D. N.J. No. 06-cv-05952 

before Honorable Harold A. Ackerman

Argued on September 10, 2013

Before: RENDELL, JORDAN and GREENAWAY, JR., 

Circuit Judges.

(Opinion filed: October 3, 2013)

Lisa B. Freeland, Esquire (Argued)

Federal Public Defender 

Western District of Pennsylvania

Office of Federal Public Defender

1001 Liberty Avenue

1500 Liberty Center

Pittsburgh, PA 15222

Counsel for Petitioner Michael J. Pendleton
3

Stephen A. Zappala, Jr., Esquire

District Attorney

Michael W. Streily, Esquire

Deputy District Attorney

Rusheen R. Pettit, Esquire (Argued)

Assistant District Attorney

Allegheny County Office of the District Attorney

436 Grant Street

303 Courthouse

Pittsburgh, PA 15219

Counsel for Respondent Gerald Rozum, 

Superintendent at SCI Somerset

David R. Fine, Esquire (Argued)

George A. Bibikos, Esquire

K&L Gates, LLP

Market Square Plaza

17 North Second Street, 18th Floor

Harrisburg, PA 17101

Counsel for Petitioner Franklin X. Baines
4

R. Seth Williams, Esquire

District Attorney 

Hugh J. Burns, Jr., Esquire

Chief, Appeals Unit

Thomas W. Dolgenos, Esquire

Chief, Federal Litigation 

Ronald Eisenberg, Esquire (Argued)

Deputy District Attorney

Edward F. McCann, Jr., Esquire

First Assistant District Attorney

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Counsel for Respondents Louis S. Folino, 

Superintendent, SCI, Green; The Attorney 

General of the Commonwealth of Pennsylvania

Marc Bookman, Esq.

Atlantic Center for Capital Representation

1315 Walnut Street – Ste. 1331

Philadelphia, PA 19107

Counsel for the Atlantic Center for Capital 

Representation, Amicus Petitioner
5

Bradley S. Bridge, Esq.

Defender Association of Philadelphia

1441 Sansom Street

Philadelphia, PA 19102

Counsel for the Defender Association of 

Philadelphia, Amicus Petitioner

Marsha L. Levick, Esq.

Juvenile Law Center of Philadelphia

1315 Walnut Street – Ste. 400

Philadelphia, PA 19107

Counsel for the Juvenile Law Center of 

Philadelphia, Amicus Petitioner

David B. Glazer, Esquire (Argued)

Glazer & Luciano

19-21 West Mount Pleasant Avenue

Livingston, NJ 07039

Counsel for Petitioner Corey Grant
6

Paul J. Fishman, Esquire

United States Attorney 

Mark E. Coyne, Esquire 

Assistant United States Attorney

Chief, Appeals Division

Steven G. Sanders, Esquire (Argued)

Assistant United States Attorney

Office of United States Attorney

970 Broad Street – Rm. 700

Newark, NJ 07102

Counsel for Respondent United States of 

America

PER CURIAM

In Miller v. Alabama, 132 S. Ct. 2455, 2460 (2010), 

the Supreme Court held 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.‟” Corey Grant, Franklin X. Baines, 

and Michael J. Pendleton (collectively, “Petitioners”), each of 

whom claims to be serving a mandatory sentence of life 

without the possibility of parole for offenses committed as 

juveniles, seek our authorization to file successive habeas 

corpus petitions under 28 U.S.C. §§ 2254 (for Baines and 

Pendleton) and 2255 (for Grant) to raise Miller claims. Both 

Baines and Pendleton were convicted in state court in 

Pennsylvania, and Grant was convicted in federal court in 

New Jersey. Because these petitions raise similar legal 
7

questions, we consolidated them for argument and now 

address them jointly.

Before a second or successive petition may be filed in 

district court, the petitioner must apply for a certification 

from the appropriate United States court of appeals. See 28 

U.S.C. § 2244(b)(3)(A). A certification giving leave to file a 

successive petition will be granted when the petitioner has 

made a “prima facie” showing that his or her claim relies on 

“a new rule of constitutional law, made retroactive to cases on 

collateral review by the Supreme Court, that was previously 

unavailable.” Id. § 2244 (b)(2)(A) & (3)(A)(C); see also § 

2255(h)(2). Under our precedent, a “prima facie showing” in 

this context merely means “„a sufficient showing of possible 

merit to warrant a fuller exploration by the district court.‟” 

Goldblum v. Klem, 510 F.3d 204, 220 (3d Cir. 2007) (quoting 

Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).

The parties here agree that Miller states a new rule of 

constitutional law, but dispute whether the Supreme Court has 

made Miller retroactive to cases on collateral review. In 

Pendleton‟s and Baines‟s cases, Pennsylvania argues that 

Miller is not retroactive; in Grant‟s case, the United States 

asserts that Miller is retroactive but that Grant‟s sentence 

satisfies the new Miller rule and so no relief is warranted.

1

 

 

1 At this early stage, we will not consider whether Grant 

actually qualifies for relief under Miller. We only determine 

whether Grant has made a prima facie showing that Miller 

created “a new rule of constitutional law, made retroactive to 

cases on collateral review by the Supreme Court, that was 

previously unavailable.” 28 U.S.C. § 2255(h)(2). See 

Goldblum, 510 F.3d at 219 (“„[S]ufficient showing of 

possible merit‟ in this context does not refer to the merits of 
8

Petitioners argue: (1) that the Supreme Court implicitly made 

Miller retroactive by applying the rule to Miller‟s companion 

case, Jackson v. Hobbs, which came to the Court through 

Arkansas‟s state collateral review process; (2) that Miller

announced a substantive rule that “necessarily carr[ies] a 

significant risk that a defendant . . . faces a punishment that 

the law cannot impose upon him,” Schriro v. Summerlin, 542 

U.S. 348, 352 (2004) (internal quotations marks omitted), and 

therefore should be given retroactive effect under Teague v. 

Lane, 489 U.S. 288 (1989) (plurality); and (3) that, in the 

alternative, Miller qualifies as a “watershed procedural rule[] 

of criminal procedure” meriting retroactive application under 

Teague, 489 U.S. at 311. 

After extensive briefing and oral argument, we 

conclude that Petitioners have made a prima facie showing 

that Miller is retroactive. In doing so, we join several of our 

sister courts of appeals. See, e.g., Wang v. United States, No. 

13-2426 (2d Cir. July 16, 2013) (granting motion to file a 

successive habeas corpus petition raising a Miller claim); In 

re James, No. 12-287 (4th Cir. May 10, 2013) (same); 

Johnson v. United States, 720 F.3d 720 (8th Cir. 2013) (per 

curiam) (same). But see In re Morgan, 713 F.3d 1365 (11th 

Cir. 2013) (concluding that Miller is not retroactive), reh’g en 

banc denied, 717 F.3d 1186; Craig v. Cain, No. 12-30035, 

2013 WL 69128 (5th Cir. Jan. 4, 2013) (per curiam) (same). 

However, we stress that our grant is tentative, and the

District Court must dismiss the habeas corpus petition for 

 

the claims asserted in the petition. Rather, it refers to the 

merits of a petitioner‟s showing with respect to the 

substantive requirements of 28 U.S.C. § 2244(b)(2).”).
9

lack of jurisdiction if it finds that the requirements for filing 

such a petition have not in fact been met. Goldblum, 510 F.3d 

at 219-20; see also 28 U.S.C. § 2244(b)(4) (“A district court 

shall dismiss any claim presented in a second or successive 

application that the court of appeals has authorized to be filed 

unless the applicant shows that the claim satisfies the 

requirements of this section.”). We therefore grant 

Petitioners‟ motions under §§ 2244(b)(3) and 2255(h) and 

authorize each to file a successive habeas corpus petition in 

the district court.