United States District Court, W.D. Pennsylvania
Flowers Conti United States Chief Judge
REPORT AND RECOMMENDATION
Cynthia Reed Eddy United States Magistrate Judge
respectfully recommended that Respondents' Motion to
Dismiss be granted, the petition for a writ of habeas corpus
be dismissed with prejudice as untimely, and that a
certificate of appealability be denied.
Relevant and Procedural Background
before the Court is a petition for a writ of habeas corpus
filed by state prisoner Lawrence White
(“Petitioner” or “White”), in which
he is challenging his 1995 convictions for third-degree
murder and carrying a firearm without a license. On February
5, 1996, White was sentenced by the Court of Common Pleas of
Allegheny County at CC No. 1995-3913 to an aggregate term of
imprisonment of 12-1/2 to 25 years. White filed a direct appeal
to the Superior Court of Pennsylvania, but then filed a
Petition to Discontinue the Appeal. As a result, the appeal
was discontinued on April 1, 1996.
August 28, 1997, White filed a pro se petition for
post-conviction collateral relief under the Post-Conviction
Relief Act (“PCRA”). The PCRA court denied the
PCRA petition on January 5, 1998. White appealed the
dismissal to the Superior Court and on April 12, 1999, the
Superior Court affirmed the dismissal of the petition as
untimely. White filed a Petition for Allowance of Appeal with
the Pennsylvania Supreme Court, which was denied on July 29,
White filed four additional PCRA Petitions, each of which was
found to be untimely. In his fifth PCRA petition, White raised
claims based on Alleyne v. United States, 570 U.S.
99 (2013); on August 19, 2016, the Superior Court
dismissed the petition as untimely and found that no PCRA
exceptions applies to the time-bar. See Commonwealth v.
White, slip op., No. 1927 WDS 2015 (ECF No. 8-1, Exh 4).
fifteen months after his fifth PCRA petition had been
dismissed, White filed the instant Petition for Writ of
Habeas Corpus on November 9, 2017. (ECF No. 4). White
recognizes that his petition is untimely, but argues that he
can overcome the time bar because (i) he received a mandatory
minimum sentence which was later declared unconstitutional by
Alleyne and (ii) he meets the “actual
innocence” standard per McQuiggin v. Perkins,
569 U.S. 383, 386 (2013).
filed the instant motion to dismiss (ECF 8), White responded
in opposition (ECF No. 14), and Respondents filed a Reply
(ECF No. 16). The matter is ripe for disposition.
proceeding is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), the federal
habeas statute applicable to state prisoners. AEDPA imposes a
one-year period of limitation that applies to a habeas corpus