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Whittle v. Clark

United States District Court, W.D. Pennsylvania

December 11, 2017

KEVIN TYLER WHITTLE, Petitioner,
v.
SUPERINTENDANT CLARK and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

          MEMORANDUM OPINION

          LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE

         A. Background

         Kevin Tyler Whittle (“Petitioner”) has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) challenging his judgment of sentence entered by the Butler County Court of Common Pleas on September 28, 2006. (ECF No. 1.) Petitioner's judgment of sentence stems from his conviction for various drug and firearm related charges on August 24, 2006, and, for these convictions, he was sentenced to an aggregate term of imprisonment of 14½ to 29 years. See Commonwealth v. Whittle, CP-10-CR-244-2006; CP-10-CR-245-2006; CP-10-CR-246-2006 (Butler County Com. Pl.);[1] see also (Resp't Exs. 1-3, ECF Nos. 5-1, 5-2, 5-3.)

         Following his sentencing, Petitioner filed a timely direct appeal to the Superior Court of Pennsylvania, which rejected his claims and affirmed his judgment of sentence on February 15, 2008. Commonwealth v. Whittle, 951 A.2d 1220 (Table) (Pa. Super. 2008); see also (Resp't Ex. 4, ECF No. 5-4.) On August 6, 2008, the Supreme Court of Pennsylvania denied Petitioner's petition for an allowance of appeal. Commonwealth v. Whittle, 2008 Pa. LEXIS 1242, __ A.2d (Pa. 2008); see also (Resp't Ex. 5, ECF No. 5-5.) He did not file a writ of certiorari with the United States Supreme Court and his time for doing so expired on November 4, 2008. See Sup. Ct. R. 13; 42 Pa. C.S.A. § 9545(b)(3).

         Petitioner filed his first pro se petition pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”) on November 6, 2009.[2] (Resp't Ex. 3, ECF No. 5-3, p.20.) The PCRA court appointed counsel who subsequently filed a “no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). (Resp't Ex. 3, ECF No. 5-3, pp.20-21.) The PCRA court permitted PCRA counsel to withdraw and then dismissed Petitioner's PCRA petition on June 3, 2010. (Resp't Ex. 3, ECF No. 5-3, p.22.) Petitioner filed a timely appeal, and in an unpublished memorandum filed on April 20, 2011, the Superior Court affirmed the PCRA court's denial of post-conviction relief. Commonwealth v. Whittle, 29 A.3d 841 (Table) (Pa. Super. 2010); see also (Resp't Ex. 6, ECF No. 5-6.) Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

         On December 9, 2013, Petitioner filed a second pro se PCRA petition alleging that he was entitled to relief pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013), which had been published by the United States Supreme Court on June 17, 2013. (Resp't Ex. 3, ECF No. 5-3, p.25.) The PCRA court ultimately dismissed the PCRA petition as untimely on August 18, 2014, after Petitioner failed to prove an exception to the PCRA's timeliness requirements found at 42 Pa. C.S.A. § 9545(b). (Resp't Ex. 3, ECF No. 5-3, p.27.) On appeal, the Superior Court agreed that Petitioner had failed to prove the applicability of any of the exceptions to the PCRA's time restrictions despite his attempt at arguing that the United States Supreme Court recognized a new constitutional right in Alleyne and therefore his petition fell under the exception of subsection 9545(b)(1)(iii).[3] Commonwealth v. Whittle, 2015 WL 7575787 (Pa. Super. Feb. 10, 2015); see also (Resp't Ex. 8, ECF No. 5-8.) Petitioner sought a petition for allowance of appeal, which the Pennsylvania Supreme Court denied on June 17, 2015. Commonwealth v. Whittle, 117 A.3d 297 (Table) (Pa. 2015); see also (Resp't Ex. 9, ECF No. 5-9.)

         Petitioner filed a third pro se PCRA petition on March 7, 2016, alleging that the United States Supreme Court's holding in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), somehow provided him with an avenue to circumvent the PCRA's timeliness requirements. (Resp't Ex. 3, ECF No. 5-3, p.29.) The PCRA court found this argument unpersuasive and dismissed the petition as untimely on March 28, 2016. (Resp't Ex. 3, ECF No. 5-3, pp.29-30.) While Petitioner did file an appeal to the Superior Court, it was eventually dismissed for his failure to file the required docketing statement. (Resp't Ex. 10, ECF No. 5-10.)

         The instant Petition for Writ of Habeas Corpus is dated August 1, 2017, but it was not filed until September 8, 2017. Petitioner appears to assert two claims for relief in his Petition: (1) the trial court erred in overruling the defense's objections and request for a mistrial when the Commonwealth admitted into evidence a lease for the residence at 328 N. Broad Street that they had withheld from the defense until trial; and this was a violation of Brady v. Maryland, 373 U.S. 83 (1963), (ECF No. 1-2), and (2) the state courts erred in determining that his subsequent PCRA petitions were untimely filed because he was illegally sentenced, (ECF No. 1-3).[4]Respondents filed a Motion to Dismiss the Petition on October 4, 2017, claiming that it was untimely filed. (ECF No. 5.) Petitioner filed a responsive brief on October 20, 2017. (ECF No. 7.) The Petition is now ripe for review.

         B. Discussion

         AEDPA imposes a one-year limitations period for state prisoners seeking federal habeas review. It is codified at 28 U.S.C. § 2244(d) and it provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...

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