WHITE v. GIROUX et al

Filing 17

MEMORANDUM OPINION denying 1 Petition for Writ of Habeas Corpus filed by LAWRENCE T. WHITE. Signed by Magistrate Judge Cynthia Reed Eddy on 3/30/2017. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LAWRENCE T. WHITE,
Petitioner,
v.
NANCY GIROUX and THE ATTORNEY
GENERAL OF THE STATE OF
PENNSYLVANIA,
Respondents.

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Civil Action No. 2: 15-cv-0400
United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM OPINION1
Petitioner, Lawrence T. White, is a state prisoner incarcerated at the State Correctional
Institution at Albion, Pennsylvania, He seeks a writ of habeas corpus, pro se, pursuant to 28
U.S.C. § 2254. For the reasons set forth below, the petition will be denied.
I.

Procedural History
Petitioner, Lawrence White (“Petitioner” or “White”), challenges the judgment of

sentenced entered on July 26, 2013, which was corrected by Corrected Order of Sentence on
November 12, 2013, in the Court of Common Pleas of Allegheny County.
White was charged with violations of provisions of the criminal and vehicle codes. Prior
to trial, an agreement was reached by the parties and approved by the trial court to sever Count 1,
the Person Not to Possess/Use Firearm (“PNTP”) offense and Counts 5 and 6, the summary
motor vehicle code violations, from the remaining offenses (Counts 2, 3, and 4). A single trial
was to occur, with the trial judge trying Counts 1, 5, and 6, and a jury deciding Counts 2, 3, an 4.

In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to have a U.S. Magistrate Judge conduct proceedings in this case, including entry of a
final judgment. See ECF Nos. 12and 16.
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The trial occurred on November 18, 2009. The jury returned a verdict of guilty on all of
the counts it considered. The trial court found White guilty of the motor vehicle code violations,
but not guilty of Count 1, the PNTP, because the trial court initially found that the
Commonwealth had failed to introduce into evidence any testimony or record of White’s
conviction for a crime that would have disqualified him from possessing a firearm.
After the verdict was issued, the Commonwealth informed the trial court that it had
reached a stipulation with White’s counsel that White had been convicted of Criminal Homicide,
a conviction which would disqualify him from possession of a firearm. With this information,
the trial court changed the verdict to guilty on Count 1. On February 11, 2010, White was
sentenced to 54 to 108 months incarceration for the Count 1 conviction; no additional penalty
was assessed for the remaining convictions.
White did not file a direct appeal; but he did file a timely PCRA Petition seeking to
reinstate his direct appeal rights. That petition was granted and counsel appointed to represent
White on direct appeal. On direct appeal, White asserted three claims of ineffective assistance of
counsel and one claim of double jeopardy claiming that his rights were violated when the trial
court changed its verdict on Count 1 from not guilty to guilty. The trial court in its 1925(a)
opinion agreed that the change in verdict violated White’s double jeopardy rights and
acknowledged that the case should be remanded for resentencing as White was given no further
penalty for his convictions on the other charges. The Superior Court agreed with the trial court
and remanded the case for a new sentencing hearing.
On July 11, 2013, a resentencing hearing was held. On July 23, 2013, the trial court
issued a “Revised Order of Sentence,” which sentenced White as follows:

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18 § 6105 §§ C1 – Person Not to Possess/Use Firearms – Fugitive (F2)
To be confined for a minimum period of 2 Year(s) and a maximum period of 4
Year(s) at SCI Camp Hill
***
To be placed on Probation for a minimum period of 3 Year(s) and a maximum
period of 3 Year(s) to be supervised by STATE.
The following conditions are imposed:
Other: RANDOM DRUG SCREENING
***
18 § 6106 §§ A1 – Firearms Not To Be Carried W/O License (F3)
A determination of guilty without further penalty.
July 26, 2013 Sentencing Order (“July Order”).

A problem existed with the July Order,

however, because White could not be sentenced on this charge as it had been dismissed on
appeal on double jeopardy grounds.
Through counsel, White appealed.

On November 12, 2013, while the appeal was

pending, the trial court issued a “Corrected Order of Sentence,” which provides:
18 § 6106 §§ A1 – Firearms Not To Be Carried W/O License (F3)
To be confined for a minimum period of 24 Month(s) and a maximum period of
48 month(s) at SCI Camp Hill
***
To be placed on Probation for a minimum period of 3 Year(s) and a maximum
period of 3 Year(s) to be supervised by STATE.
The following conditions are imposed:
Other: RANDOM DRUG SCREENING
***
18 § 6106 §§ C1 – Person Not to Possess / Use Firearms – Fugitive (F2)
Offense Disposition: Not Guilty
***
November 12, 2013 Sentencing Order (“November Order”).
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Counsel then filed a petition to withdraw, along with an Anders brief, presenting two
issues. The first issue raised a discretionary aspect of sentence claim, which the Superior Court
found that White had failed to preserve for appeal. The second issue challenged the legality of
the July Order and the trial court’s authority to correct that order. After a lengthy discussion, the
appellate court found that the July Order contained a clerical error and that as a result, the trial
court had authority to issue the November Order to correct the clerical error. The Superior Court
also acknowledged and rejected a double jeopardy challenge that White made in his pro se
response to the Anders brief.

The court explained that when White’s original sentence was

vacated, he was restored to the status of unsentenced. “Therefore, the July Order sentenced
White anew and did not raise any double jeopardy concerns. Accordingly, the November Order,
which merely corrected the clerical error in the July Order, did not raise any double jeopardy
issues either.” Superior Court Memorandum, May 28, 2014 (ECF No. 13-2). The Superior
Court affirmed the judgment of sentence.
In the instant petition, White raises only one claim: “a violation of double jeopardy for
Count 2 Carrying Firearm Without a License on resentence hearing.” Pet. at ¶ 12. (ECF No. 1).
According to the Petition:
Superior Court vacated Count 1 Person Not to Possess Firearm, at my
resentencing hearing Judge Cashman vacated Count 1 and opens up Count 2 and
resentenced me to a new and greater sentence on that Count after he gave me a
sentence of guilty with no further penalty prior to that new sentence. Superior
Court never instructed him to resentence me on Count 2. Superior Court or lower
court never cited any law where this new sentence is lawful.
Id. at ¶ 12(a).

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II.

Standard of Review
A. 28 U.S.C. § 2254
This case is governed by the federal habeas statute applicable to state prisoners. 28

U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996,
Pub.L.No. 104-132, 110 Stat. 1214, enacted on April 24, 1996 (“AEDPA”). Under this statute,
habeas relief is only available on the grounds that White’s convictions were obtained in
violation of his federal constitutional rights. 28 U.S.C. § 2254(a).
As codified at 28 U.S.C. § 2254(d), AEDPA provides as follows:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim –
(1) resulted in a decision that was contrary to or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
“A state-court decision is ‘contrary to’ clearly established federal law if the state court (1)
‘contradicts the governing law set forth in [the Supreme] Court's cases or (2) ‘confronts a set of
facts that are materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a [different] result.’ ” Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir.
2004) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). Few state court decisions will
be “contrary to” Supreme Court precedent. “Clearly established Federal law” should be
determined as of the date of the relevant state-court decision. Greene v. Palakovich, 606 F.3d 85,
95 (3d Cir. 2010), aff'd, Greene v. Fisher, 565 U.S. 34 (2011).
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The federal habeas court more often must determine whether the state court adjudication
was an “unreasonable application” of Supreme Court precedent. “A state-court decision
‘involve[s] an unreasonable application’ of clearly established federal law if the state court (1)
‘identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably
applies it to the facts of the particular . . . case’; or (2) ‘unreasonably extends a legal principle
from [Supreme Court] precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.’ “ Id. (quoting Williams,
529 U.S. at 407).
B.

AEDPA’s Threshold Requirements

Before the Court can address the merits of White’s claim, it is necessary to examine
whether the petition fulfills the applicable procedural requirements as set forth in AEDPA. The
first consideration in reviewing a federal habeas corpus petition is whether the petition was
timely filed under AEDPA's one-year limitations period. 28 U.S.C. § 2244(d). Respondents do
not dispute that White’s petition was timely filed. The Court agrees and find that White’s claim
is timely.
Next, the Court must address whether White exhausted the “remedies available [to him]
in the courts of the State.” 28 U.S.C. § 2254(c). Respondents do not dispute that White’s claim
has been exhausted. The Court agrees that White raised the claim in state court and as such, his
habeas claim is exhausted and not procedurally defaulted.
III.

Review of Petitioner’s Claim
As he did on direct appeal, White argues that the change in the verdict on Count 2,

firearm not to be carried without a license, constitutes a Double Jeopardy violation. Specifically,
he contends that the trial court could not give him a new and increased sentence on this count,
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because the trial court has previously sentenced him to guilty without further penalty on this
charge.
After a review of the submissions of the parties, and the state court record, the Court
concludes that White has failed to state a valid double jeopardy claim. The Court bases its
conclusion primarily for the reasons stated by the Pennsylvania Superior Court in rejecting this
claim on the merits on White’s appeal.
The Superior Court explained that the record reflects that at the July 2013 resentencing
hearing the trial court acknowledged that White could not be sentenced on the dismissed Count 1
charge, but rather was to be sentenced on Count 2, the CWL charge. However, the July Order
was inconsistent with the events that took place during the judicial proceedings. The July Order
failed to do what the trial court had repeatedly acknowledged it intended to so, i.e., sentence
White on the CWL charge.

Instead, the Order reflects a sentence that the trial court

acknowledged that it could not do – that is, sentence White on Count 1, the PNTP charge.
The Superior Court held that the record reflects that the trial court unquestionably
intended to resentence White on Count 2; thus, the July Order contained a clerical error and the
November Order merely corrected this clerical error. In light of this finding, the Superior Court
rejected White’s double jeopardy argument and explained its finding as follows:
Given our disposition of the previous issue, White’s double jeopardy
argument is frivolous. As this Court held in Commonwealth v. Johnson, 967 A.2d
1001 (Pa. Super. 2009),
It is [] clear from our case law that a vacated sentence is a nullity
and the defendant is restored to the status of unsentenced; thus for
purposes of double jeopardy analysis the vacated sentence does not
limit the sentencing court.
Id. at 1006.
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When this Court vacated White’s original sentence, White was restored to
the status of unsentenced. Therefore, the July Order sentenced White anew and
did not raise any double jeopardy concerns. Accordingly, the November Order,
which merely corrected the clerical error in the July Order, did not raise any
double jeopardy issues either.
Superior Court Memorandum at 14, May 28, 2014 (ECF No. 13-2).
This Court finds that the Superior Court’s determination was neither contrary to or
involved an unreasonable application of clearly established Federal law, nor did it result in a
decision that was based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. Thus, White’s petition will be dismissed as he has failed
to state a valid claim of the denial of a constitutional right.
IV.

Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a

certificate of appealability for appellate review of a district court's disposition of a habeas
petition. It provides that “[a] certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.” “When the district court
denies a habeas petition on procedural grounds without reaching the prisoner’s underlying
constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at
least, that jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Where the district court has rejected a constitutional claim on its merits, “[t]he petitioner must
demonstrate that reasonable jurists would find the district court's assessment of the constitutional
claims debatable or wrong.” Id. Applying those standards here, the Court concludes that jurists

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of reason would not find it debatable whether each of White’s claims should be dismissed.
Accordingly, a certificate of appealability should be denied.
IV.

Conclusion
For all of the above reasons, the petition for a writ of habeas corpus will be denied. There

has been no substantial showing of the denial of a constitutional right requiring the issuance of a
certificate of appealability. An appropriate Order follows.
Dated: March 30, 2017

cc:

s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

LAWRENCE T. WHITE
CY-0479
SCI Albion
10745, Route 18
Albion, PA 16475
(U.S. First Class Mail)
LAWRENCE T. WHITE
MV-35382
SCI Albion
10745, Route 18
Albion, PA 16475
(U.S. First Class Mail)
Rusheen R. Pettit
Office of the District Attorney of Allegheny County
(via ECF electronic notification)

Petitioner’s address of record lists his inmate number as CY-0479. However, the Department
of Corrections Inmate Locator reflects that Petitioner’s inmate number has been changed to MV3538. Therefore, in an abundance of caution, the Court is sending copies of this Memorandum
Opinion to Petitioner in separate envelopes, one addressed utilizing Inmate No. CY-0479 and
one utilizing Inmate No. MV-3538.
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