White v. Lamas

• Decision Date: 12 September 2012
• Docket Number: Civil Action No. 11–2339.
• Parties: Joseph WHITE, Petitioner, v. Supt. Morisa LAMAS, et al., Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

905 F.Supp.2d 624

Joseph WHITE, Petitioner,

v.Supt. Morisa LAMAS, et al., Respondents.

Civil Action No. 11–2339.

United States District Court, E.D. Pennsylvania.

Sept. 12, 2012.

Raheem S. Watson, Conrad O'Brien, Philadelphia, PA, Walter S. Batty, Swarthmore, PA, for Petitioner.

Susan Elizabeth Affronti, Philadelphia District Attorneys Office, Philadelphia, PA, for Respondents.

MEMORANDUM

ROBERT F. KELLY, Senior District Judge.

Presently before the Court is a Petition for Writ of Habeas Corpus (the “Petition”) filed by Joseph White (“White”), a state prisoner, pursuant to 28 U.S.C. § 2254. Magistrate Judge Thomas J. Rueter filed a Report and Recommendation (“R & R”) in this matter recommending that the Petition be granted and White re-sentenced by the Commonwealth of Pennsylvania (the “Commonwealth”) within ninety (90) days of an order granting the Petition. For the reasons which follow, we approve and adopt this R & R in its entirety.

I. BACKGROUND

On November 13, 2008, White was found guilty after a jury trial in the Philadelphia Court of Common Pleas of homicide by vehicle while driving under the influence and driving under the influence of alcohol or a controlled substance.¹ White's convictions involved the death of sixteen-year-old Benjamin Lipsky who was leaving Synagogue services with his family when he was struck by White's vehicle in the parking lane of a street in Philadelphia. On January 9, 2009, now-retired Judge Renee Cardwell Hughes sentenced White to an aggregate sentence of five to ten years imprisonment.

Subsequently, White filed a motion for a new trial and to arrest judgment, which was denied by the court on January 22, 2009. ( See Mot. for Arrest of J./ New Trial ¶¶ 5–6.) White then filed a notice of appeal to the Pennsylvania Superior Court raising five claims for review including the claim that he was “entitled to a remand to the Sentencing Court for a new Sentencing Hearing, where the Court abused its discretion in imposing sentence and where the sentence imposed was excessive and harsh under the circumstances and where the Court had expressed its bias against the type of case before it and where the Court failed to consider mitigating factors before it.” (Resp. Habeas Pet., Ex. C at 3–4.) The Superior Court affirmed the judgment of sentence in an opinion dated March 31, 2010. See Commonwealth v. White, No. 512 EDA 2009, 996 A.2d 559 (Pa.Super.2010.) The Supreme Court of Pennsylvania denied White's request for discretionary review on August 4, 2010. Commonwealth v. White, 607 Pa. 691, 3 A.3d 671 (2010) (Table).

On April 4, 2011, White filed the instant Petition pro se and raised a single claim asserting that his sentence was excessive. The Commonwealth filed a Response to the Petition on December 5, 2011. Magistrate Judge Rueter subsequently appointed counsel to represent White, and counsel filed a memorandum in support of the Petition on April 13, 2012. The Commonwealth filed a Supplemental Response to this memorandum on July 16, 2012. On August 20, 2012, Magistrate Judge Rueter issued his R & R recommending that the Petition be “conditionally granted so that the state court can re-sentence petitioner in accordance with the Constitution.” (R & R at 27.) Magistrate Judge Rueter further recommended that this Court order the Commonwealth to release White from Custody should he not be re-sentenced within ninety (90) days of the date of an order granting the writ of habeas corpus. ( Id.) The Commonwealth filed objections to the R & R on August 31, 2012.

II. DISCUSSION

When a Magistrate Judge has issued a R & R for a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this Court “shall make a de novo determination of those portions of the recommendation to which objection is made. A judge of the court may accept, reject or modify, in whole or in part, the findings or recommendation made by the magistrate.” 28 U.S.C. § 636(b).

The Commonwealth objects to the R & R on the following grounds: (1) Petitioner has provided no evidence of “actual vindictiveness” and the R & R misapplied relevant precedent; (2) the state court adjudicated all of the sentencing claims before it, and Petitioner is not entitled to de novo review; and (3) Petitioner's claim is procedurally defaulted because he did not fairly present it to the state court. (Doc. No. 41).

We have carefully considered the objections raised by the Commonwealth. We have also thoroughly reviewed the applicable case law relevant to each objection, and find that they have no merit. The R & R properly addressed Petitioner's lone sentencing claim and the issues involving its presentation to the state courts. Accordingly, we find no reason to expound on Magistrate Judge Rueter's well-reasoned and comprehensive R & R, and thus, we adopt his recommendations in their entirety.

An appropriate Order follows.

ORDER

AND NOW, this 12th day of September, 2012, upon consideration of Petitioner, Joseph White's (“White”) Petition for Writ of Habeas Corpus (“Petition”), the memorandum in support thereof, the Response and Supplemental Response of the District Attorney's Office of Philadelphia, and after review of the Report and Recommendation (“R & R”) of Magistrate Judge Thomas J. Rueter (Doc. No. 40), it is hereby ORDERED that:

1. the R & R is APPROVED and ADOPTED;

2. Petitioner's Petition is GRANTED; and

3. the Superintendent of the State Correctional Institution at Forest, in Camp Hill, Pennsylvania, shall release Petitioner from custody should Petitioner not be re-sentenced by the state court within ninety (90) days of the date of this Order.

ORDER

AND NOW, this day of _____, 2012, upon consideration of the pleadings and record herein, and after review of the Report and Recommendation of Magistrate Judge Thomas J. Rueter, it is hereby

ORDERED

that:

1. The Report and Recommendation is APPROVED and ADOPTED;

2. Petitioner's petition for a writ of habeas corpus is GRANTED; and

3. The Superintendent of the State Correctional Institution at Forest, in Camp Hill, Pennsylvania, shall release petitioner from should petitioner not be re-sentenced by the state court within ninety (9) days of the date of this Order.

REPORT AND RECOMMENDATION

THOMAS J. RUETER, United States Magistrate Judge.

Presently before the court is a counseled Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated at the State Correctional Institution Forest, in Camp Hill, Pennsylvania. For the reasons that follow, the court recommends that the petition be granted.

I. BACKGROUND AND PROCEDURAL HISTORY

On November 13, 2008, a jury sitting in the Court of Common Pleas of Philadelphia County found petitioner guilty of homicide by vehicle while driving under the influence and driving under the influence of alcohol or a controlled substance. (N.T. 11/13/08 at 84–85.) At that time, the court deferred sentencing pending a pre-sentence investigation and on January 9, 2009, now-retired Judge Renee Cardwell Hughes sentenced petitioner to an aggregate sentence of five to ten years imprisonment. (Resp. Ex. C, at 1.)

The evidence presented at trial was as follows:

On October 7, 2006, Benjamin Lipsky (16 years old) (hereinafter “Benjie”) was attending religious services with his family at Beth Midrash Harav Synagogue, located at 7926 Algon Avenue, in the City and County of Philadelphia. At the conclusion of the service, Benjie's father and two brothers, Daniel and Elie, began to walk back to their home, while Benjie stayed behind with some of the congregants. Benjie left Synagogue to catch up to his family who had stopped in the median of Algon Avenue to allow cars to pass before crossing. Algon Avenue was illuminated brightly by street lights and the weather was clear and dry that evening. Benjie stepped into the parking lane of Algon Avenue and was instantly struck by [petitioner's] white Cadillac which had swerved into the parking lane. The impact threw Benjie over the car, where he struck the hood, and landed approximately 40 feet from the point of impact. [Petitioner] did not attempt to slow down, but continued driving down the street. [Petitioner's] vehicle eventually stopped approximately 20 feet south of where Benjie's body was found. [Petitioner] exited his vehicle and asked, “did something just happen?”

Police officers noted that [petitioner] smelled like alcohol from three feet away, swayed back and forth, and his speech was slurred. [Petitioner] could not produce his driver's license when asked. He was placed in custody for driving under the influence of alcohol, and then fell asleep in the back of the police car on the way to the Police Detention Unit (“PDU”). At the PDU, [petitioner] consented to chemical testing and confessed that he hit a man. The blood test revealed [petitioner's] blood alcohol level was .163%, twice the legal limit.

Upon arrival at the hospital, Benjie was pronounced brain dead. He sustained breaks in both bones in his left leg, a severe skull fracture which caused catastrophic brain injury, and a fracture of his third vertebra. Benjie was pronounced dead the following day.

[Petitioner's] car sustained damage to the passenger side at the headlight area and the grill and the passenger side windshield was also broken. Similarly, both the passenger side headlight and turn signal were dislodged. There were no evasive maneuver marks (tire marks) left from [petitioner's] car which would show quick movements made to avoid hitting Benjie. However, a fresh scuff mark from Benjie's shoe was found 9 inches before the end of the parking lane.

Commonwealth v. White, 996 A.2d 559 (Pa.Super.Ct.2010) (Table). (Resp. Ex. C, at 1–3.)

Prior to trial, the prosecutor offered petitioner a plea bargain of two and one-half to five years incarceration in exchange for a guilty plea. (N.T. 11/5/08 at 22.) This sentence was below the minimum mandatory of three to six years. Petitioner rejected this...