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Mark Jordan v. B.A. Bledsoe et al

July 27, 2012

MARK JORDAN, PETITIONER
v.
B.A. BLEDSOE ET AL., RESPONDENTS.



The opinion of the court was delivered by: Paul S. Diamond, J.

ORDER

The Magistrate Judge has recommended that I dismiss as untimely Mark Jordan's pro se Petition for habeas relief. (Doc. No. 24.) 28 U.S.C. § 2254. I will overrule Jordan's Objections, and approve and adopt the Magistrate Judge's Report and Recommendation.

I. BACKGROUND

Jordan pled guilty in Philadelphia Common Pleas Court on June 19, 1995, to nine counts of robbery, nine counts of carrying a firearm on a public street, and one count of theft. As alleged, Jordan entered an Alford Plea based on his understanding that the sentencing judge had agreed to a ten-year term of imprisonment. See North Carolina v. Alford, 400 U.S. 25 (1970). On February 14, 1996, the state court judge imposed a sentence of 19 to 38 years imprisonment, to be served concurrently with Jordan's 261/2 -year sentence on a related federal conviction. See United States v. Jordan, No. 94-524 (E.D. Pa. Oct. 30, 1995) (judgment).

In November 1996, while Jordan was serving his concurrent sentences in a federal prison, his trial counsel told him that his appeal had been denied, and that "she had done all she could for [him]." (Doc. No. 25 at 40.) She did not respond to Jordan's subsequent attempts to contact her. As alleged, over a decade later, Jordan learned that no appeal had been filed.

On December 5, 2007, Jordan sought relief under the Post Conviction Relief Act, claiming that: 1) he did not knowingly and voluntarily plead guilty; 2) the Common Pleas Court "reneged on its promised 10-year pre-plea sentence"; and 3) his trial counsel failed to comply with his request to withdraw his plea and file an appeal, and then "abandoned" him. (Pet. ¶¶ 5, 7.) Jordan argued to the PCRA Court that his petition was delayed because he was denied access to Pennsylvania law research materials while in federal custody. The PCRA Court rejected this argument, and dismissed Jordan's petition as untimely. The Superior Court affirmed on September 23, 2009. The Pennsylvania Supreme Court denied Jordan's request for allocatur on April 14, 2010.

On March 15, 2011, Jordan filed the instant § 2254 Petition in the Middle District of Pennsylvania. Jordan v. Bledsoe, No. 11-521 (M.D. Pa.). Because he had been convicted in Philadelphia Common Pleas Court, the Petition was transferred to this District. (Doc. No. 1.) See 28 U.S.C. § 2241(d). Jordan reasserts the arguments rejected by the PCRA Court, adding that: 1) he could not have discovered the basis for his ineffective assistance claim-his trial counsel's failure to file an appeal-until 2007; and 2) shortly after being informed that the "appeal" had been denied, an attorney working for the Pennsylvania Department of Corrections incorrectly advised him that he could not seek collateral relief in state court until he had completed serving his federal sentence. He states that he was able to overcome these "impediments" only after writing to a state court in 2007 and obtaining from the clerk a form PCRA petition and a copy of his state court docket. (Doc. No. 25 at 9.)

II. LEGAL STANDARDS

Under the Antiterrorism and Effective Death Penalty Act of 1996, a state prisoner may file a federal habeas petition no later than one year after:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

A district court generally may not review procedurally defaulted claims:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991). III. DISCUSSION

Jordan filed his Petition on March 21, 2011. The Commonwealth submitted its Response on January 11, 2012. (Doc. No. 19.) Although Jordan mailed his "Traverse" to that Response on February 14th of this year, the Clerk of Court did not receive the Traverse until February 23rd. (Doc. No. 25.) The Magistrate Judge issued his Report and Recommendation on February 21st. (Doc. No. 24.) Jordan ...


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