United States District Court, M.D. Pennsylvania
October 5, 2005.
PAUL LOSINGER, JR., Petitioner,
FRANK GILLIS, et al., Respondent.
The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
Presently before the court is a petition for writ of habeas
corpus (Doc. 11) pursuant to 28 U.S.C. § 2254. For the reasons
that follow, the petition will be dismissed.
I. Statement of Facts
In 1999, following the entry of guilty pleas to burglary,
theft, unsworn falsification to authorities and impersonating a
public servant, petitioner Paul J. Losinger ("Losinger") was
sentenced by a Pennsylvania state court to an aggregate sentence
of eleven to twenty-two years incarceration. (Doc. 18-2, p. 25,
Doc. 18-2, p. 30). The judgment of sentence was affirmed by the
Pennsylvania Superior Court on July 7, 2000, and Losinger did not
seek further review with the Pennsylvania Supreme Court or the
United States Supreme Court. (Doc. 18-2, p. 25). In June 2002,
Losinger filed a petition pursuant to the Post Conviction Relief
Act (PCRA), 42 PA. CONS. STAT. §§ 9541-9546. That petition was
dismissed as time-barred. (Doc. 20, p. 4). No appeal was taken.
In August 2003, Losinger filed a second PCRA petition, which was
also dismissed as time-barred. No appeal was taken. Id. In 2005 Losinger filed a third PCRA petition. It, too, was dismissed
as untimely, and again no appeal was taken. Id.
The instant petition was filed on March 8, 2005, and alleges
ineffective assistance of trial counsel in violation of Whether's
Sixth Amendment rights.*fn1 (Doc. 11). On April 8, 2005, the
court issued an order advising Losinger that he could either have
the petition ruled upon as filed, or have the petition withdrawn
without prejudice to the filing of an all inclusive petition at a
later date. (Doc. 13). Losinger filed a notice of election in
which he opted to have the court consider the petition as filed.
Section 2244 of title 18 of the United States Code establishes
a one-year statute of limitations period for federal habeas
corpus petitions filed by anyone in state custody. See
28 U.S.C. § 2244(d)(1). The limitations period begins to run from
the date on which the petitioner's judgment became final, to wit:
either the date of a final decision on direct appeal, or the date
of the expiration of the time period for seeking such an appeal.
See id.; see also Morris v. Horn, 187 F.3d 333, 337, n. 1
(3d Cir. 1999); Kapral v. United States, 166 F.3d 565, 575, 577
(3d Cir. 1999). In the case sub judice, the limitations period for filing a
habeas corpus petition commenced when the time for petitioning
the United States Supreme Court for a writ of certiorari expired
ninety days after the date on which the Pennsylvania Superior
Court affirmed Losinger's judgment of sentence. See Lines v.
Larkins, 208 F.3d 153, 164 (3d Cir. 2000); see also Kapral,
166 F.3d at 575 (direct review concludes with the expiration of
the time for petitioning for certiorari review). As Losinger's
judgment of sentence was affirmed on June 7, 2000, the
limitations period commenced on October 5, 2000, and Losinger had
until October 5, 2001 to file a § 2254 petition. The instant
petition filed on September 9, 2004 is therefore untimely and
will be dismissed.*fn2
An appropriate order will issue. ORDER
AND NOW, this 5th day of October, 2005, upon consideration of
the petition for writ of habeas corpus (Doc. 11), and for the
reasons set forth in the accompanying memorandum, it is hereby
1. The petition for writ of habeas corpus (Doc. 11)
is DISMISSED as untimely. See
28 U.S.C. § 2244(d)(1).
2. A certificate of appealability is DENIED. See
28 U.S.C. § 2253.
3. The Clerk of Court is directed to CLOSE this case.
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