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Williams v. Garmon

United States District Court, W.D. Pennsylvania

April 5, 2018

JEFF SCHIRONE WILLIAMS, Petitioner,
v.
MARK GARMON and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

          David S. Cercone District Judge.

          REPORT & RECOMMENDATION ECF NOS. 29, 33, 34

          Lisa Pupo Lenihan United States Magistrate Judge.

         I. RECOMMENDATION

         It is respectfully recommended that Respondents' Motion to Dismiss the Petition for Writ of Habeas Corpus (ECF No. 29) be granted, Petitioner's Petition for Writ of Habeas Corpus (ECF Nos. 4, 8, 9) be dismissed for lack of subject matter jurisdiction, Petitioner's Motion for Preliminary Injunction (ECF No. 33) be denied, Petitioner's Motion Requesting Release Under Fed. R. App. P. 23(b)(3) (ECF No. 34) be denied, and that a Certificate of Appealability be denied.

         II. REPORT

         Jeff Schirone Williams (“Petitioner”) has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, along with several Briefs in Support thereof. (ECF Nos. 4, 8, 9, 26.) He is challenging his judgment of sentence imposed on June 25, 2007 in Case No. CC200414658 by the Court of Common Pleas of Allegheny County after he was convicted of Kidnapping for Ransom, Corruption of Minors, Possession of a Controlled Substance with Intent to Deliver, Possession of a Controlled Substance, and Possession of Drug Paraphernalia. For these crimes he received an aggregate sentence of fifteen (15) to thirty (30) years of imprisonment, which was made to run consecutively to any sentence he was already serving.

         Petitioner has already challenged this judgment of sentence in a Petition for Writ of Habeas Corpus that he filed in this Court on July 15, 2010, and which was ultimately denied by District Judge David S. Cercone on November 15, 2011. Williams v. Lamas, et al., No. 2:10-cv-936 (W.D. Pa.) (ECF No. 32). The Third Circuit Court of Appeals denied Petitioner a Certificate of Appealability in that case on February 13, 2012. Williams v. Lamas, et al., No. 11-4461 (3d Cir.). Petitioner then sought permission in the Third Circuit to file a second or successive petition attacking his 2007 judgment of sentence, but that application was denied on May 20, 2013. In re: Jafarnia Williams, C.A. No. 13-1991 (3d Cir.).

         Petitioner again challenged the same 2007 judgment of sentence in a Petition for Writ of Habeas Corpus that he filed in this Court on September 17, 2013, and on May 7, 2014 it was dismissed for lack of jurisdiction as a second or successive petition that he did not have permission to file pursuant to 28 U.S.C. § 2244. Williams v. Lamas, et al., No. 2:13-cv-1171 (W.D. Pa.) (ECF No. 21.) In this Petition, Petitioner claimed that the modification of his sentence for time credit entered on June 26, 2013[1] resulted in a “new judgment” under which he was now confined and therefore his Petition was not a second or successive petition.[2] In the undersigned's Report and Recommendation issued on April 14, 2014, it was explained that Petitioner's resentencing was in actuality just a modification of his sentence that was more akin to a correction of a clerical error in a judgment, which courts have found does not result in a new judgment. Id. (ECF No. 19.) Petitioner did not appeal this Court's ruling but he did file another application in the Third Circuit to file a second or successive petition challenging his 2007 judgment of sentence. In re: Jeff Schirone Williams, C.A. No. 14-3379 (3d Cir.). In his application, he made the same argument - that his petition was not second or successive because his judgment of sentence was modified in 2013 to reflect the award of time credit, but the Third Circuit disagreed stating that his original sentence was not vacated and no resentencing took place. Id. (Order dated August 28, 2014). It also stated that Petitioner's situation is “markedly different from Magwood [v. Patterson, 561 U.S. 320 (2010)]” on which he principally relied and that he did not cite any authority that warranted extending Magwood's holding to his case. Id.

         Now pending before the Court is Petitioner's third Petition for Writ of Habeas Corpus challenging his 2007 judgment of sentence. Petitioner again claims that his Petition should not be considered a second or successive habeas petition, except now he supports his Petition with two Pennsylvania Superior Court opinions that were issued in his underlying criminal case on January 29, 2016 (No. 565 WDA 2015) and on August 21, 2017 (No. 704 WDA 2016). He attempts to use these opinions to support his position that he was in fact resentenced by the state court in both 2013 (to award time credit) and 2016 (to remove fees and costs that were erroneously imposed), and he should therefore be permitted to file another habeas petition challenging his 2007 judgment of sentence pursuant to Magwood, without first having to request permission from the Circuit to file a second or successive petition.

         With regard to the 2013 order modifying Petitioner's sentence to award time credit, this Court has already addressed the very issue Petitioner raises and has determined that Petitioner's sentence did not result in a new, intervening judgment under Magwood. The Third Circuit agreed when it denied Petitioner's application to file a second or successive habeas petition on this basis. This Court should not revisit this issue no matter the language contained within the Superior Court opinion dated January 29, 2016, in which it referred to Petitioner's award of time credit on June 26, 2013 as a “new” sentence. Furthermore, the Court agrees with Respondents' additional reasons for why the Superior Court's opinion does not support Petitioner's position, which are found in their Reply to Petitioner's Response to the Motion to Dismiss. (ECF No. 36, pp.9-11.)

         With regard to the 2016 modification of Petitioner's sentence, which removed the fees and costs that were erroneously imposed after Petitioner was awarded time credit in 2013, the undersigned finds that it too does not constitute a new judgment of sentence for purposes of Magwood. In fact, the Superior Court even referred to it as a correction of a “clerical error” in its August 21, 2017 opinion. Courts have found that the correction of a clerical error in a judgment does not result in a new judgment. See Bishop v. Sec'y, Fla. Dep't of Corr., No. 3:13cv118/MCR/EMT, 2013 U.S. Dist. LEXIS 147431, 2013 WL 5596776, at *4-5 (N.D. Fla. Sept. 18, 2013) (citing cases), adopted by Order dated Oct. 10, 2013.

         As the undersigned previously stated in her Report in Recommendation dated April 14, 2014, and filed in Williams v. Lamas, et al., No. 2:13-cv-1171 (W.D. Pa.):

The Supreme Court has stated that a court looks to “the judgment challenged” in order to determine whether a habeas petition is “second or successive.” Magwood, 130 S.Ct. at 2797. Here, Petitioner is challenging his 2007 judgment as he did in Case No. 2:10-cv-936. There is nothing to indicate that the 2013 modification of his sentence to reflect time credit affected the finality of his judgment of sentence.

         Similarly, there is nothing to indicate that the removal of costs and fees that occurred in 2016 affected the finality of Petitioner's judgment of sentence. This is ...


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