United States District Court, W.D. Pennsylvania
PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE
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.); see also
(Resp't Exs. 1-3, ECF Nos. 5-1, 5-2, 5-3.)
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.
filed his first pro se petition pursuant to the
Pennsylvania Post Conviction Relief Act (“PCRA”)
on November 6, 2009. (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timely appeal, and in an unpublished memorandum filed on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.
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). 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.)
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.)
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).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.
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