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Mosley v. Wetzel

United States District Court, W.D. Pennsylvania

March 14, 2017

JOSHUA RYAN MOSLEY, Petitioner,
v.
JOHN WETZEL, et al., Respondents.

          Barbara Rothstein District Judge

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          SUSAN PARADISE BAXTER United States Magistrate Judge

         I. RECOMMENDATION

         It is respectfully recommended that the petition for a writ of habeas corpus filed by state prisoner Joshua Ryan Mosley (the "Petitioner") be denied, and that a certificate of appealability be denied with respect to all claims.

         II. REPORT

         A. Relevant Background[1]

         The Superior Court of Pennsylvania summarized the background of his cases as follows:

On January 6, 2013, [the Petitioner] and Jose Antonio Diaz ("Diaz") entered the Modern Adult store in Erie, Pennsylvania. After perusing the movies in the store, [the Petitioner], who was wearing a distinctive green jacket with a fur-trimmed hood, approached the store clerk, pointed a gun at his face and demanded money and products. [the Petitioner] and Diaz took approximately $300.00 in cash, 94 bottles of Sonic Zero, and 49 packets of Purple Diesel. [The Petitioner] and Diaz then left the adult store and ran to the City Mission Shelter, which was approximately two blocks from the store.
Officer Jerry Devine ("Officer Devine") received a radio dispatch regarding the robbery and a description of the two perpetrators. Upon arriving at the adult store, a bystander on the street told Officer Devine that the perpetrators had run into the City Mission Shelter. Officer Devine entered the shelter where he encountered [the Petitioner] and Diaz. [The Petitioner] and Diaz were found in possession of a gun, money, and the stolen items from the store. The police arrested [the Petitioner] and Diaz.
Following a jury trial, [the Petitioner] was convicted of criminal conspiracy, robbery, theft by unlawful taking, receiving stolen property, possessing instruments of crime, and terroristic threats. On June 24, 2013, the trial court sentenced [the Petitioner] to an aggregate prison term of eight to sixteen years.

Commonwealth v. Mosley, No. 1946 WDA 2014, 2015 WL 7078907, *1 (Pa.Super.Ct. June 3, 2015) (footnote omitted) ("Mosley II").

         On May 7, 2014, the Superior Court of Pennsylvania issued an opinion and order in which it affirmed the Petitioner's judgment of sentence. (SCR No. 23, Commonwealth v. Mosley, No. 1243 WDA 2013, slip op. at 1-9 (Pa.Super.Ct. May 7, 2014) ("Mosley I")). The Petitioner had 30 days-until June 6, 2014-to file a petition for allowance of appeal (a "PAA") with the Pennsylvania Supreme Court. Pa.R.A.P. 1113(a). He did not file a PAA. Accordingly, his judgment of sentence became final under both state and federal law on June 6, 2014. See 42 Pa.C.S. § 9545(b)(3) ("a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review."); Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012) (a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (same).

         On July 17, 2014, the Petitioner filed a pro se petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. (SCR No. 24). The PCRA court appointed the Petitioner counsel. Counsel subsequently filed a petition for leave to withdraw and an accompanying "no-merit" letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988) (en banc). (SCR No. 27). "The PCRA court issued a Notice of Intent to Dismiss without a Hearing, but denied the Petition to Withdraw. On October 23, 2014, the PCRA dismissed" the PCRA petition. Mosely II, 2015 WL 7078907 at *1.

         The Petitioner filed an appeal with the Superior Court. On June 3, 2015, the Superior Court issued an opinion and order (Mosely II) in which it affirmed the PCRA court's decision. The Petitioner did not file a PAA with the Supreme Court of Pennsylvania. Accordingly, his PCRA proceeding ...


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