United States District Court, E.D. Pennsylvania
TIMOTHY J. SAVAGE, J.
than eight years after his sentence became final, Jason
Lozada, a state prisoner currently incarcerated at
SCI-Forest, filed a pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2254. He contends that
his trial counsel failed to file a direct appeal despite his
request that he do so and erroneously advised him that his
pleading guilty did not preclude his appealing the denial of
his motion to dismiss the charges.
habeas petition is untimely. His delay in filing it is not
excused by either statutory or equitable tolling. Therefore,
we shall dismiss his petition.
January 23, 2007, pursuant to a negotiated plea, Lozada
pleaded guilty to rape and corruption of the morals of a
minor. He was sentenced to concurrent terms of eight and
one-half to twenty years and two and one-half to five
years. Lozada did not file post-sentence motions.
Nor did he take a direct appeal. On May 12, 2015, Lozada
filed a petition for habeas corpus pursuant to 28 U.S.C.
§ 2254. He claims ineffective assistance of
contends that he presented his claims in a petition for
relief under the Post Conviction Relief Act
(“PCRA”), 42 Pa. Cons. Stat. § 9541 et
seq., which he filed on April 30, 2007. Although he
produced a time-stamped copy of his petition, no original
exists at either the Philadelphia Court of Common Pleas or
the PCRA Unit of the District Attorney's
Office. Lozada asserts the petition was properly
filed with the court and he surmises it was subsequently
“lost or otherwise destroyed.” The respondents
suggest it is more likely that Lozada mistakenly mailed his
petition to the PCRA Unit of the District Attorney's
Office instead of the Court of Common Pleas.
than seven years later, Lozada filed a motion for disposition
of his 2007 PCRA petition. The next day, on September 10, 2014,
the Court of Common Pleas returned the motion because there
was no record of a pending petition. Lozada filed a second PCRA
petition on October 24, 2014,  in which he argued the government
“improperly interfered” with his first
“timely filed PCRA.” He attached a
time-stamped 2007 PCRA petition.
2014 PCRA petition was dismissed as meritless by the Court of
Common Pleas on September 11, 2015. On July 20, 2016, the
Superior Court affirmed the PCRA court's dismissal of his
petition, determining that Lozada did not file a timely PCRA
petition. Commonwealth v. Lozada, No. 3184-EDA-2015,
slip op. at 6 (Pa. Super. July 20, 2016). The court concluded
that Lozada did not properly file a PCRA petition in 2007,
stating that “he merely mailed one to the district
attorney's office.” Id.
habeas petition under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) must be filed
within the statutory one-year limitation period. 28 U.S.C.
§ 2244(d). The relevant provision provides that the
limitation period begins to run from the latest of:
(A) the date on which the judgment becomes final by the
conclusion of direct review or the expiration of the time for
seeking such a review;
(B) the date on which the impediment to filing an application
created by the State action in violation of the Constitution
or the 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