United States District Court, W.D. Pennsylvania
Honorable Maureen P. Kelly Chief United States Magistrate
Stewart Cercone United States District Judge.
pro se, John Clougherty (“Petitioner”)
filed a Petition pursuant to 28 U.S.C. § 2254 for Writ
of Habeas Corpus by a Person in State Custody, ECF No. 4.
Petitioner is attacking his State court convictions resulting
from a plea of guilty to multiple charges. The case was
referred to Chief Magistrate Judge Maureen Kelly in
accordance with the Magistrate Judges Act, 28 U.S.C. §
636(b)(1), and Local Civil Rules 72.C and D.
Magistrate Judge Kelly issued a Report and Recommendation
(the “Report”), recommending that the Petition be
dismissed because all of the claims are time barred and, in
the alternative, the claim concerning Petitioner's
minimum sentence being illegally extended by six months also
was procedurally defaulted. ECF No. 26. Petitioner has now
filed Objections to the Report.
thoroughly reviewed the Report and the Objections, we find
that the Objections do not merit the rejection of the Report
or extended comment.
respect to the finding that Petitioner's challenges to
his convictions and his sentence as imposed, including the
allegedly illegal imposition of fines or restitution, the
Report is clearly correct that such claims are time barred by
nearly eight years.
primarily focuses his Objections on the claim that his
minimum sentence was extended by six months in violation of
his plea agreement, i.e., he is being made to serve
15 ½ to 35 years rather than 15 to 35 years. The
Report found such claim to be both time barred under the
AEDPA statute of limitations and to be procedurally defaulted
upon the Superior Court's determination that Petitioner
failed to show he complied with the 60-day PCRA statute of
limitations for "after discovered" evidence. In his
Objections, Petitioner argues that under state law, a claim
that a sentence is illegal is non-waivable, apparently
meaning that no matter what procedural failings he may have
engaged in, including the failure to raise the illegal
sentence claim in a timely State court petition, the State
courts must address his claim of an illegal sentence.
Petitioner is simply wrong on the law.
extent that Petitioner claims this Court cannot apply the
AEDPA statute of limitations bar to his claim of an allegedly
illegal sentence,  Petitioner is wrong as a matter of federal
law. In Witman v. Cameron, No. CV 16-1814, 2016 WL
3922631, at *4-5 (E.D. Pa. June 14, 2016), report and
recommendation adopted, No. CV 16-1814, 2016 WL 3922628
(E.D. Pa. July 20, 2016), the Court opined:
federal district courts routinely hold that a habeas
petitioner asserting that his sentence violates the
Constitution is required to abide by the AEDPA statute of
limitations. See, e.g., Howell v. Spearman, No. C
13-5176 RMW (PR), 2015 WL 3465799, at *3 (N.D. Cal. May 29,
2015) (petitioner required to abide by the AEDPA statute of
limitations to raise a claim of illegal sentence);
Farnsworth v.Ryan, No. CV-10-361-PHX-ROS, 2011 WL
5882194, at *3 (D. Ariz. Nov. 23, 2011) (AEDPA statute of
limitations applies to petition asserting that state court
lacked subject matter jurisdiction to impose unconstitutional
sentence); Debroeux v. Erickson, No. 05-1673, 2006
WL 1896194, at *1 (E.D. Pa July 7, 2006) (applying AEDPA to
petition raising claim of illegal sentence). In light of the
foregoing, Petitioner's claim of illegal sentence based
on Alleyne is governed by the AEDPA, and it is only
properly before the Court if it was asserted prior to the
expiration of the federal habeas statute of limitations. As
set forth below, it was not.
failure to raise a claim predicated on an illegal or
unconstitutional sentence in a timely manner can bar review
under the AEDPA.
extent Petitioner argues that the State courts erred as a
matter of state law in finding his claim of an illegal
sentence subject to the 60-day PCRA statute of limitations
for after-discovered evidence and barred by that statute of
limitations, and that the Report consequently erred in
relying on the State courts' finding to base its
determination that Petitioner procedurally defaulted his
claim, Petitioner is again wrong on the law. Commonwealth
v. Barnes, No. 2079 EDA 2012, 2013 WL 11258870, at *3
(Pa. Super. July 25, 2013) (“These exceptions [to the
PCRA statute of limitations] apply even when there is a claim
of an illegal sentence. See Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999) (determining that challenges to
legality of sentence claims ‘must still first satisfy
the PCRA's time limits or one of the exceptions
thereto'); Commonwealth v. Vega, 754 A.2d 714,
719 (Pa. Super. 2000) (holding that legality of sentence
claims ‘must first satisfy the Act's time
limitations or one of its exceptions'). To invoke any one
of the aforementioned exceptions, the petition must be filed
‘within 60 days of the date the claim could have been
presented.' 42 Pa. C.S.A. § 9545(b)(2).
Appellant's conviction became final on September 17,
1991, one year after the United States Supreme Court denied
Appellant's petition for writ of certiorari.
Hence, Appellant's November 1, 2011 petition is facially
untimely and may not be considered unless Appellant pleads
and proves one of the three exceptions. Appellant has failed
to do so. As a result, the PCRA court correctly concluded the
PCRA petition was untimely.”).
appears to be arguing that the Report erred in finding that
he procedurally defaulted his claim because the application
of the 60-day PCRA statute of limitations for
after-discovered evidence, in the face of the alleged
State-law rule that illegal sentencing claims are not
waivable, makes the 60-day PCRA statute of limitations an
“inadequate” state law rule for purposes of
procedural default. We reject this position and find that the
application of the PCRA statute of limitations to illegal
sentencing claims to be “adequate” such that the
Report's reliance thereon to find Petitioner procedurally
defaulted his claims is clearly correct.
objection which was not specifically addressed does not merit
any further discussion as the Report is an adequate rebuttal.
we note that on March 7, 2017, Petitioner filed what was
docketed as “Motion To Compel Specific
Performance.” ECF No. 29. In that Motion, Petitioner
sought several forms of relief: 1) expedited consideration of
the Objections and a ruling thereon by this Court; 2)
appointment of counsel; and 3) an evidentiary hearing. In
light of this Memorandum Opinion overruling petitioner's
Objections, the Motion to Compel will be denied as moot.
Dated: July 13, 2017s/David Stewart