Michael Pendleton v.

See case details

In re Michael J. PENDLETON, Petitioner

No. 12-3617

United States Court of Appeals, Third Circuit

October 3, 2013

280

Argued Sept. 10, 2013.

tion subpoenas failed to disclose that they were sent by a debt collector attempting to collect a debt and that “any information obtained [would] be used for that purpose.” 15 U.S.C. § 1692e(11). The Bankruptcy Code‘s automatic stay provision forbids “any act to collect, assess, or recover a claim against the debtor that arose before the commencement” of the bankruptcy proceeding. 11 U.S.C. § 362(a)(6). Several courts have held that sending a § 1692e(11) notice violates the automatic stay. See, e.g.,

Maloy v. Phillips, 197 B.R. 721, 723 (M.D.Ga.1996);

Divane v. A & C Elec. Co., Inc., 193 B.R. 856, 859 (N.D.Ill.1996);

Hubbard v. Nat‘l Bond & Collection Assoc., Inc., 126 B.R. 422, 428-29 (D.Del.1991). If, as the Simons argue, a § 1692e(11) claim could arise from the fact that the Weinstein & Riley letters and subpoenas did not include the “mini-Miranda” notice, the firm would violate the automatic stay provision of the Bankruptcy Code by including the notice or violate the FDCPA by not including the notice. This conflict precludes allowing a claim under § 1692e(11) for failing to include the “mini-Miranda” notice in the letters and Rule 2004 examination subpoenas sent to the Simons through their bankruptcy counsel.¹³

IV. Conclusion

We will affirm in part and reverse in part the District Court‘s dismissal of the Simons’ claims. We will affirm the dismissal of the Simons’ § 1692e(5) and (13) claims for allegedly violating the Civil Rule 45 and Bankruptcy Rule 9016 subpoena rules by failing to identify the recording method in the Rule 2004 examination subpoenas and by issuing the subpoenas from a district other than where the examinations were to be held. We will affirm the dismissal of the Simons’ § 1692e(11) claim because the mini-Miranda requirement conflicts with the automatic stay provision of the Bankruptcy Code. We will reverse the dismissal of the Simons’ remaining § 1692e(5) and (13) claims for allegedly violating Civil Rule 45 and Bankruptcy Rule 9016 by failing to serve the subpoenas directly on the individuals subpoenaed and failing to include the text of Civil Rule 45(c)-(d) in the subpoenas, and we will remand.

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.

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

United States Court of Appeals, Third Circuit.

Argued Sept. 10, 2013.

Opinion Filed Oct. 3, 2013.

Lisa B. Freeland, Esquire (Argued), Federal Public Defender, Western District of Pennsylvania, Office of Federal Public Defender, Pittsburgh, PA, for Petitioner Michael J. Pendleton.

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, Pittsburgh, PA, for Respondent Gerald Rozum, Superintendent at SCI Somerset.

David R. Fine, Esquire (Argued), George A. Bibikos, Esquire, K & L Gates, LLP, Harrisburg, PA, for Petitioner Franklin X. Baines.

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, Philadelphia, PA, for Respondents Louis S. Folino, Superintendent, SCI, Green; The Attorney General of the Commonwealth of Pennsylvania.

Marc Bookman, Esq., Atlantic Center for Capital Representation, Philadelphia, PA, for the Atlantic Center for Capital Representation, Amicus Petitioner.

Bradley S. Bridge, Esq., Defender Association of Philadelphia, Philadelphia, PA, for the Defender Association of Philadelphia, Amicus Petitioner.

Marsha L. Levick, Esq., Juvenile Law Center of Philadelphia, Philadelphia, PA, for the Juvenile Law Center of Philadelphia, Amicus Petitioner.

David B. Glazer, Esquire (Argued), Glazer & Luciano, Livingston, NJ, for Petitioner Corey Grant.

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, Newark, NJ, for Respondent United States of America.

Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges.

PER CURIAM.

In

Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012), the Supreme Court held that “man-

datory 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 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)).¹

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 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, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (internal quotations marks omitted), and therefore should be given retroactive effect under

Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (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, 109 S.Ct. 1060.

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 (11th Cir.2013);

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 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.

Notes

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 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).“).

13

We do not reach the question whether the subpoenas (but not the letters) are exempt from the § 1692e(11) notice requirements as “formal pleading[s] made in connection with a legal action.” 15 U.S.C. § 1692e(11). That is, we do not decide whether a Rule 2004 subpoena is an initial communication under § 1692e(11).

Case Details

Case Name: Michael Pendleton v.

Court Name: Court of Appeals for the Third Circuit

Date Published: Oct 3, 2013

Citation: 732 F.3d 280

Docket Number: 12-3617, 12-3996, 13-1455

Court Abbreviation: 3rd Cir.