WHITE v. CLARK et al
MEMORANDUM OPINION re 4 Petition for Writ of Habeas Corpus filed by LAWRENCE WHITE, 8 MOTION to Dismiss Habeas Petition filed by DISTRICT ATTORNEY OF ALLEGHENY COUNTY, WETZEL, CLARK. After de novo review of the pleadings and d ocuments in this case, together with the report and recommendation, and the objections and response thereto, the court will order that respondents' motion to dismiss be granted and the instant petition for writ of habeas corpus be dismissed as u ntimely filed. Because reasonable jurists would not find it debatable whether the instant petition is untimely and that equitable tolling is not appropriate, a certificate of appealability will not issue. Signed by Chief Judge Joy Flowers Conti on 4/12/2018. (smc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SUPERINTENDENT CLARK and the
DISTRICT ATTORNEY OF
Civil Action No. 2: 17-cv-1460
United States Chief Judge
Joy Flowers Conti
Pending before the court is the petition under 28 U.S.C. § 2254 for a writ of habeas
corpus filed by petitioner Lawrence White (“Petitioner” or “White”). (ECF No. 4). The matter
was referred to a United States Magistrate Judge for a report and recommendation in accordance
with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local
Rules for Magistrate Judges.
Petitioner is challenging the 1995 judgment of sentence imposed upon him by the Court
of Common Pleas of Allegheny County, Pennsylvania, at Docket No. CP-02-CR-000039131995. After a bench trial, Petitioner was convicted of third-degree murder, in violation of 18 Pa.
Cons. Stat. § 2502, and carrying a firearm without a license, in violation of 18 Pa. Cons. Stat. §
6106. He filed the instant petition on November 9, 2017, seeking federal habeas relief.
Respondents Superintendent Clark and the District Attorney of Allegheny County
(“Respondents”) filed a motion to dismiss arguing that the petition is untimely and that Petitioner
failed to plead and prove that he is entitled to any form of equitable tolling. (ECF No. 8).
Petitioner filed a response in opposition (ECF No. 14), to which Respondents filed a reply. (ECF
The magistrate judge issued a report and recommendation (ECF No. 17) on February 20,
2018, recommending that the motion to dismiss be granted, the petition be dismissed with
prejudice as untimely, and that a certificate of appealability be denied. Service of the report and
recommendation was made on the parties, who were informed that, in accordance with the
Magistrate Judge’s Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local Rule of Court 72.D.2, they
had until March 6, 2018 (ECF users) and March 9, 2018 (non-ECF users) to file written
objections. Petitioner filed timely objections to the report and recommendation (ECF No. 18)
and Respondents filed a reply to those objections. (ECF No. 20).
Where, as here, objections have been filed, the court is required to make a de novo
determination about those portions of the report and recommendation to which objections were
made. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The district court may accept, reject, or
modify the recommended disposition, as well as receive further evidence or return the matter to
the magistrate judge with instructions.
Petitioner’s objections are difficult to decipher. It appears that the gist of his objections is
that the magistrate judge erred in stating in the report and recommendation that he was arguing
that he could overcome the time bar because “he received an illegal sentence under Alleyne and
meets the actual innocence standard per McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).” Obj.
at 1 (ECF No. 18). Petitioner argues that the recommendation of the magistrate judge is
erroneous because he “can basically rely heavily on the equal protection clause. . . .” Id.
Petitioner’s objections will be addressed seriatim.
First, Petitioner continues to argue that at Count 2, his conviction for carrying a firearm
without a license, he received an illegal mandatory minimum sentence under 42 Pa. Cons. Stat.
§ 9712. In the report and recommendation the magistrate judge explained that the Pennsylvania
Superior Court specifically found that the record does not support Petitioner’s claim in which he
asserted the trial court imposed a five-year mandatory minimum sentence under 42 Pa. Cons.
Stat. § 9712. See report and recommendation at 4 (ECF No. 17), quoting Commonwealth v.
White, No. 1927 WDA 2015, 2016 WL 5868541, at *2 (Pa. Super. Ct. Aug. 19, 2016) (ECF No.
8-1, Exh. 4). The record reflects that Petitioner was sentenced on his third-degree murder
conviction to ten to twenty years’ imprisonment and was sentenced on his conviction for
carrying a firearm without a license to two and one-half years’ to five years’ imprisonment, with
the sentences to consecutively run. In his objections, Petitioner states, “[he] has contested and
will continue to contest that his sentence was illegally increased. Superior Court misstated the
facts.” Obj. at 1 (ECF No. 18). He does not set forth any greater detail. On the record
presented there is no reason to disagree with the recommendation of the magistrate judge. The
record simply does not support Petitioner’s claim that a five-year mandatory minimum sentence
was imposed at Count 2 pursuant to 42 Pa. Cons. Stat. § 9712. Therefore, this objection will be
denied as without merit.
Next, Petitioner argues that the magistrate judge erred in stating that he was relying on
McQuiggin to support his actual innocence claim,
The written findings are erroneous because (again) Mr. White does not rely on
McQuiggin v. Perkins, [569 U.S. 383 (2013)], as his actual innocence claim. He
relies on McQuiggin v. Perkins to demonstrate one cannot be time barred on his
first writ of habeas corpus if he claims innocence. Mr. White relies on Sawyer v.
Whitley, [505 U.S. 333 (1992)] , and Dretcke v. Haley,[541 U.S. 386 (2004)], to
demonstrate a claim of actual innocence of a sentence.
Obj. at 2 (ECF No. 18). This objection also is without merit because Petitioner’s understanding
of the holding in McQuiggin is incorrect and his reliance on the two decisions by the United
States Supreme Court, Sawyer v. Whitley, 505 U.S. 333 (1992), and Dretcke v. Haley, 541 U.S.
386 (2004), is misplaced. Petitioner cited no support for his argument that the holding in
McQuiggin somehow made a time-bar exception for a “first writ of habeas corpus if he claims
innocence.” Obj. at 2 (ECF No. 18). In fact, contrary to Petitioner’s argument, the habeas
petition at issue in McQuiggin was “an untimely first federal habeas petition.” McQuiggin, 569
U.S. at 396. Further, the decisions in Sawyer and Dretcke provide no support for Petitioner’s
argument. The issue before the Supreme Court in both those cases involved whether the
petitioners had shown they were “actually innocent” of the crimes of which they were convicted.
Here, Petitioner never argued that he is actually innocent of the crimes of which he was
convicted; rather, he has steadfastly maintained that he was subjected to an illegal sentence. As
explained in the report and recommendation, an allegation of an illegal sentence does not
constitute or establish “actual innocence.” Even assuming arguendo that these cases have any
bearing on the instant case, Dretcke was decided in 2004, long before Petitioner filed the instant
federal habeas petition. Petitioner fails to explain why he delayed in filing the instant habeas
Petitioner’s third and final argument is that he is entitled to relief under the Equal
Protection Clause or Welch v. United States, 136 S.Ct. 1257 (2016). His claim that he is entitled
to habeas relief under the Equal Protection Clause is general and conclusory:
Mr. White remains under an illegal sentence in lucid violation of his Eighth and
Fourteenth Amendment rights to be liberated from cruel and unusual punishment
and due process at law under the equal protection clause of persons with illegal
sentences that have been rectified, and due process of law like those individuals
that were granted relief on appeal in state court.
Memo. of Law at 6 (ECF No. 4-1). Petitioner does not include any facts which would
reasonably support an equal protection argument. His objections to the report and
recommendation are no more specific:
Since the Magistrate did not find Alleyne helpful to Mr. White case, her findings
should not have stopped there. They (her findings), should have swam in further
to reach the beneficial conclusion of an equal protection violation . . . .
Obj. at 2 (ECF No. 18). Petitioner’s conclusory allegations are not sufficient to establish
that his equal protection rights were violated.
Additionally, his reliance on Welch is equally unavailing. In Johnson v. United States,
135 S.Ct. 2551 (2015), the Supreme Court held that imposing an enhanced sentence under the
residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii),
violated the constitutional right to due process. In Welch, the Supreme Court recognized that
Johnson is a new substantive rule of constitutional law that applies retroactively to cases on
Petitioner’s objection is premised on his argument claim that he received an illegal
enhanced five-year mandatory minimum sentence pursuant to 42 Pa. Cons. Stat. § 9712.
Petitioner, however, is mistaken when he asserts that the trial court imposed an enhanced
sentence under 42 Pa. Cons. Stat. § 9712. For his conviction at Count 2, carrying a firearm
without a license, Petitioner was sentenced to a term of imprisonment of two and one-half years
to five years. See Criminal Docket, Court of Common Pleas of Allegheny County, No. CP-02CR-0003913-1995. The record does not support Petitioner’s claim that the trial court imposed a
five-year mandatory minimum sentenced pursuant to 42 Pa. Cons. Stat. § 9712.
In conclusion, irrespective of how Petitioner’s objections are couched, the
recommendation that nothing in the present record supports a conclusion that equitable tolling is
correct. The court reviewed the matter and concludes that the report and recommendation
correctly analyzes the issue and makes a sound recommendation. Accordingly, after de novo
review of the pleadings and documents in this case, together with the report and
recommendation, and the objections and response thereto, the court will order that respondents’
motion to dismiss be granted and the instant petition for writ of habeas corpus be dismissed as
untimely filed. Because reasonable jurists would not find it debatable whether the instant
petition is untimely and that equitable tolling is not appropriate, a certificate of appealability will
BY THE COURT:
DATED: April 12, 2018
/s/ Joy Flowers Conti
Joy Flowers Conti
United States Chief Judge
10745, Route 18
Albion, PA 16475-0002
(via U.S. First Class Mail)
Rusheen R. Pettit
Office of the District Attorney
(via ECF electronic notification)
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