McCutchen v. Furgerson

Full title: FREDDY MCCUTCHEN v. TAMMY FURGERSON, et al.

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Date published: Jul 12, 2019

CIVIL ACTION NO. 19-2801 (E.D. Pa. Jul. 12, 2019)

Opinion

CIVIL ACTION NO. 19-2801

07-12-2019

FREDDY MCCUTCHEN v. TAMMY FURGERSON, et al.

CAROL SANDRA MOORE WELLS UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

Presently before this court is a Petition for a Writ of Habeas Corpus, filed pro se pursuant to 28 U.S.C. § 2254. Freddy McCutchen ("Petitioner"), currently serving a sentence of forty years to life imprisonment at the State Correctional Institution-Phoenix, seeks habeas relief based on claims that his resentencing on April 8, 2019 was marred by numerous errors.¹ The Honorable Nitza I. Quinones Alejandro referred this matter to the undersigned for preparation of a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that the habeas petition be DISMISSED without a hearing.

1 In 1977, Petitioner was convicted of first-degree murder and he was sentenced to a mandatory term of life imprisonment, without the possibility of parole. Pet. at 4. He was a minor (under the age of 18) at the time he committed the crime, hence, after Miller v. Alabama, 567 U.S. 460 (2012) was decided and announced that his sentence was unconstitutional, Petitioner sought to have his unconstitutional sentence corrected. Petitioner was finally resentenced on April 8, 2019. Pet. at 7. --------

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("Rule 4") provides, in relevant part:

The clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

Petitioner was re-sentenced on April 8, 2019 and his direct appeal of that sentence is currently pending. Pet. at 7. Petitioner has filed a motion to stay his habeas petition while his direct appeal is pending. Pet'r Motion to Stay Proceedings at 2. Petitioner has filed his petition and the motion because he believes that the habeas statute of limitations will expire while his direct appeal is pending. Id. However, the habeas statute of limitations cannot even commence until Petitioner's conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). Since Petitioner's direct appeal is still pending, he will have a full year to file a timely habeas petition, after his direct appeal ends. Therefore, it plainly appears that Petitioner cannot obtain habeas relief at this time; his petition should be dismissed pursuant to Rule 4.

Reasonable jurists would not debate the appropriateness of the court's procedural disposition of the petition; therefore, a certificate of appealability should not issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, I make the following:

RECOMMENDATION

AND NOW, this 12^th day of July, 2019, for the reasons contained in the preceding Report, it is hereby RECOMMENDED that Petitioner's claims be DISMISSED, pursuant to Rule 4, without an evidentiary hearing. Petitioner has neither demonstrated that any reasonable jurist could find this court's procedural ruling debatable, nor shown denial of any Constitutional right; hence, there is no probable cause to issue a certificate of appealability.

Petitioner may file objections to this Report and Recommendation within fourteen (14) days of being served with a copy of it. See Local R. Civ. P. 72.1(IV). Failure to file timely objections may constitute a waiver of any appellate rights. It be so ORDERED.

/s/ Carol Sandra Moore Wells

CAROL SANDRA MOORE WELLS

United States Magistrate Judge