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Vidmosko v. Glunt

United States District Court, Middle District of Pennsylvania

May 12, 2015

ALLEN M VIDMOSKO Petitioner
v.
STEVEN R GLUNT THE PA ATTORNEY GENERAL Respondents

MEMORANDUM

Christopher C Conner Chief Judge

On December 21 2009 petitioner Allen M Vidmosko (“Vidmosko”) pled guilty to rape by forcible compulsion in the Court of Common Pleas of Lackawanna County Pennsylvania (Doc 1) On April 6 2010 he was sentenced to ten to twenty years imprisonment (Id.) On February 10 2015 Vidmosko filed the instant petition for writ of habeas corpus pursuant to 28 USC § 2254 challenging the validity of his guilty plea (Id.) For the reasons set forth below the petition will be denied as untimely

I Background

In August 2009 Vidmosko was arrested by the Scranton City Police Department for allegedly engaging in sexual intercourse with a minor (Docs 110; see https://ujsportalpacourtsus electronic docket number CP-35-CR-0002279-2009) In October 2009 a criminal information was filed in the Court of Common Pleas of Lackawanna County charging Vidmosko with rape by forcible compulsion statutory sexual assault corruption of minors unlawful contact with a minor relating to sexual offenses indecent assault of a person less than sixteen years of age and endangering the welfare of children (Id.) On December 21 2009 Vidmosko entered a guilty plea to the charge of rape by forcible compulsion (Id.) The other charges against him were nolle prossed (Id.) On April 6 2010 the court sentenced him to ten to twenty years imprisonment (Id.) On April 12 2010 Vidmosko filed a motion for reconsideration of his sentence which the trial court denied on April 13 2010 (Id.) No direct appeal was filed (Id.)

On February 2 2012 Vidmosko filed a petition for post-conviction collateral relief pursuant to the Post Conviction Relief Act (“PCRA”) 42 PA CONS STAT §§ 9541-46 (Docs 110; see https://ujsportalpacourtsus electronic docket number CP-35-CR-0002279-2009) On July 30 2013 the petition was denied as untimely (Id.) Vidmosko filed a timely appeal to the Pennsylvania Superior Court See https://ujsportalpacourtsus electronic docket number 1471 MDA 2013 On May 14 2014 the Superior Court affirmed the PCRA court's decision See Commonwealth v. Vidmosko 104 A.3d 48 (Pa Super May 14 2014) (Table No 1471 MDA 2013) The Superior Court found that Vidmosko's PCRA petition was “patently untimely” and that Vidmosko “failed to exercise any due diligence to protect his own interests and his mere contention that counsel was ineffective for failing to file an appeal [did] not save his PCRA petition from the one-year time bar” Commonwealth v Vidmosko 1471 MDA 2013 (Pa Super May 14 2014)

Vidmosko then filed a timely petition for allowance of appeal to the Pennsylvania Supreme Court See https://ujsportalpacourtsus electronic docket number 453 MAL 2014 On October 21 2014 the Supreme Court denied the appeal See Commonwealth v Vidmosko 101 A.3d 786 (Pa Oct 21 2014) (Table No 453 MAL 2014).

The instant petition was filed on February 10 2015 (Doc 1) Upon preliminary review see R Governing § 2254 Cases R 4 respondents were directed to file a response addressing the timeliness of the petition (Doc 3 citing United States v. Bendolph 409 F.3d 155 169 (3d Cir 2005) (en banc) (holding that district courts may sua sponte raise AEDPA's one-year statute of limitations provided that the petitioner is provided with notice and an opportunity to respond)) Vidmosko was afforded the opportunity to file a reply (Doc 3) On February 26 2015 respondents filed a response and a memorandum of law seeking dismissal of the petition as untimely pursuant to 28 USC § 2244 (Docs 10 11) Vidmosko filed a traverse on March 23 2015 (Doc 13)

II Discussion

The court shall “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States” 28 USC § 2254(a) A petition filed under § 2254 must be timely filed under the stringent standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) PubL No 104-132 110 Stat 1214 (Apr 24 1996) See 28 USC § 2244(d) (1) Specifically a state prisoner requesting habeas corpus relief pursuant to § 2254 must adhere to a statute of limitations that provides in relevant part as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court The limitation period shall run from the latest of -
(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
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection

28 USC § 2244(d)(1)-(2); see Jones v Morton 195 F.3d 153 157 (3d Cir 1999). Thus under the plain terms of § 2244(d)(1)(A) a state court criminal judgment does not become final until appeals have been exhausted or the time for appeal has expired See Nara v Frank 264 F.3d 310 314 (3d Cir 2001)

Vidmosko was sentenced on April 6 2010 See https://ujsportalpacourtsus electronic docket number CP-35-CR-0002279-2009 He filed a timely motion for reconsideration of his sentence which the trial court denied on April 13 2010 Id The plain terms of 28 USC ยง 2244(d)(1)(A) provide that a state court criminal judgment does not become final until appeals have been exhausted or the time for appeal has expired See Nara 264 F.3d at 314 Vidmosko's time for pursuing a direct appeal expired on May 13 2010 at which time his judgment became final The one-year period for the statute of limitations commenced running as of that date Hence the federal petition which ...


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