The U.S. Court of Appeals for the Third Circuit’s interpretation of Miller v. Alabama, issued last week, deepens the divide among the circuits on the application of the U.S. Supreme Court’s recent opinion declaring mandatory life sentences for juveniles as unconstitutional.

The appeals court had been presented with applications to bring successive habeas petitions by three inmates seeking to raise claims related to the Miller decision — all three had been sentenced to life imprisonment without parole, two in Pennsylvania and one in New Jersey, and argued that Miller can apply retroactively.

In order to bring a successive habeas petition, an inmate must first seek permission from the court of appeals, where he or she must prove a prima facie case that there is a new rule of constitutional law that would apply to his or her suit that wasn’t available before.

“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,” said the three-judge panel of the Third Circuit in its per curiam order.

On the panel were Judges Marjorie O. Rendell, Kent A. Jordan and Joseph A. Greenaway Jr.

Usually, courts of appeals decide on applications for leave to file petitions quickly, within 30 days, said David Fine, of K&L Gates in Harrisburg. But, in this case, the Third Circuit extended the timeframe and appointed extensive pro bono counsel, including Fine, who represented Franklin X. Baines, who has been a Pennsylvania inmate since pleading guilty to murder in the late 1970s. Five of the nine pages in the court’s short opinion list counsel on the case.

Although the issues were thoroughly explored, the court didn’t rule on whether or not Miller applies retroactively. It ruled only that there is a sufficiently colorable argument to be made over the application of Miller and granted the motions to file petitions, effectively sending them to the district courts to be hashed out.

“After extensive briefing and oral argument, we conclude that petitioners have made a prima facie showing that Miller is retroactive,” the court said.

“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,” it said.

In so holding, the Third Circuit joined the Second, Fourth and Eighth circuits, all of which held that inmates would be allowed to bring their petitions raising Miller claims without ruling on whether or not the Supreme Court intended for Miller to apply retroactively.

However, the Eleventh and Fifth circuits have ruled that Miller does not apply retroactively.

By ruling on only the issue in front of it — whether or not the inmates will be granted permission to bring their petitions — without getting to the heart of the actual issue about Miller‘s retroactivity, the Third Circuit has allowed a “fuller record, fuller argument” to develop, Fine said. “And we’ll have the ability to seek review.”

If the Third Circuit had ruled on the merits, there would be no option for review.

“Truth be told, they did what they were supposed to do,” Fine said of the nature of the ruling, explaining that the court found that there was enough in the petitioners’ argument for the district judge to chew on.

The state court system is considering the same issue — on the retroactivity of Miller — in a case captioned Commonwealth v. Cunningham, which was heard by the Pennsylvania Supreme Court last fall, when there were only six justices sitting on the bench after former Justice Joan Orie Melvin was indicted on corruption charges. The court has yet to issue an opinion in the case.

Lisa Freeland of the Public Defender’s Office for the Western District of Pennsylvania represented Michael Pendleton, a petitioner, and David Glazer of Glazer & Luciano in Livingston, N.J., represented the other petitioner, Corey Grant.

Ronald Eisenberg of the Philadelphia District Attorney’s Office argued on behalf of the respondents and couldn’t be reached for comment.

“We are going to consult with Philadelphia to see if we will take this forward and ask the Supreme Court to hear it,” said Mike Manko, spokesman for the Allegheny County District Attorney’s Office.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.

(Copies of the nine-page opinion in In re Pendleton, PICS No. 13-2815, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)