United States District Court, W.D. Pennsylvania
S. Cercone District Judge.
REPORT & RECOMMENDATION ECF NOS. 29, 33,
Pupo Lenihan United States Magistrate Judge.
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
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.
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.).
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 resulted in a “new
judgment” under which he was now confined and therefore
his Petition was not a second or successive
petition. 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.
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
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.)
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.
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.
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 ...