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Lozada v. Wetzel

United States District Court, E.D. Pennsylvania

December 22, 2016

JASON LOZADA
v.
JOHN WETZEL, Secretary, Pa. Dept. of Corrections, THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

          MEMORANDUM OPINION

          TIMOTHY J. SAVAGE, J.

         More 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.

         Lozada's habeas petition is untimely. His delay in filing it is not excused by either statutory or equitable tolling. Therefore, we shall dismiss his petition.

         Background

         On 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.[1] 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 counsel.[2]

         Lozada 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.[3] 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.[4] Lozada asserts the petition was properly filed with the court and he surmises it was subsequently “lost or otherwise destroyed.”[5] 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.[6]

         More than seven years later, Lozada filed a motion for disposition of his 2007 PCRA petition.[7] The next day, on September 10, 2014, the Court of Common Pleas returned the motion because there was no record of a pending petition.[8] Lozada filed a second PCRA petition on October 24, 2014, [9] in which he argued the government “improperly interfered” with his first “timely filed PCRA.”[10] He attached a time-stamped 2007 PCRA petition.

         The 2014 PCRA petition was dismissed as meritless by the Court of Common Pleas on September 11, 2015.[11] 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.

         Analysis

         A 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 ...

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