Degado v. Pennsylvania Department of Corrections

Filing 3

MEMORANDUM (Order to follow as separate docket entry) re 1 Petition for Writ of Habeas Corpus filed by Jamit Xavier Degado. Signed by Honorable Sylvia H. Rambo on 12/27/16. (pw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMIT XAVIER DELGADO,
Petitioner
vs.
PENNSYLVANIA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents

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CIVIL NO. 1:16-CV-02196

(Judge Rambo)

MEMORANDUM
On October 31, 2016, Petitioner, Jamit Xavier
Delgado, an inmate at the State Correctional Institution
at Camp Hill, Camp Hill, Pennsylvania, filed a pro se
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. (Doc. 1.)

Delgado paid the $5.00 filing fee.

The petition will now be given preliminary consideration
pursuant to Rule 4 of the Rules Governing § 2254 Cases,
28 U.S.C. foll. § 2254.1 For the reasons set forth below
Delgado’s petition will be dismissed as untimely filed.

1. Rule 4 states in pertinent part that “[t]he clerk
must promptly forward the petition to a judge under the
court’s assignment procedure, and the judge must
promptly examine it. If it plainly appears from the
petition and any attached exhibits that the petitioner
is not entitled to relief in the district court, the
judge must dismiss the petition . . . .”

Factual Background
In the petition Delgado alleges that he was
sentenced on April 25, 2005, by the Court of Common
Pleas of Dauphin County, Pennsylvania, for robbery,
criminal conspiracy to commit robbery, aggravated
assault, criminal conspiracy to commit aggravated
assault, and 2 counts of recklessly endangering another
person, and received an aggregate sentence of
imprisonment of 5 1/2 to 11 years. (Doc. 1, at 1.)
Delgado’s judgment of conviction and sentence was
pursuant to a guilty plea. (Id.)
direct appeal. (Id. at 2, 20.)

Delgado did not file a
Delgado’s judgment of

sentence became final on May 25, 2005, 30 days after the
sentence was imposed.

No other proceedings in state

court were filed by Delgado until August 14, 2012.
Commonwealth of Pennsylvania v. Jamit Xavier Delgado,
CP-22-CR-0003797-2004.2

On that date Delgado filed a

The court utilized the Unified Judicial System of
Pennsylvania Web Portal to review the docket of
Delgado’s criminal case. A district court may take
judicial notice of proceedings in another court. See
United States v. Wilson, 631 F.2d 118 (9th Cir. 1980);
Hayes v. Woodford, 444 F.Supp.2d 1127, (S.D. Cal.
2006)(“[F]ederal courts may take judicial notice of
2.

(continued...)
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petition to permit release from prison and be placed on
house arrest for occupational, educational and family
purposes.

On September 12, 2012, the Court of Common

Pleas of Dauphin County denied Delgado’s petition.
After that denial Delgado did not file any further
proceedings in state court until October 29, 2014, when
he filed in the Court of Common Pleas a motion under
Pennsylvania’s Post Conviction Relief Act, 42 Pa.C.S.A.
§§ 9541, et seq.

(“PCRA”).

Counsel was appointed for

Delgado and an amended PCRA petition filed on January
13, 2015.

On March 9 and April 13, 2015, the Court of

Common Pleas dismissed the PCRA proceedings.

Counsel

failed to take a timely appeal and subsequently a second
PCRA petition was granted by the Court of Common Pleas
reinstating Delgado’s appellate rights nunc pro tunc and
a Notice of Appeal was filed to the Superior Court on
June 12, 2015.

The primary issue raised on appeal was

whether Delgado should receive relief under the recent
United States Supreme Court case of Alleyne v. United
2.

(...continued)

other courts’ proceedings, within the federal judiciary
and without, if the proceedings directly relate to the
matter before the court.”).
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States, 133 S.Ct. 2151 (2013).

On February 1, 2016,

the Superior Court affirmed the decision of the Court of
Common Pleas dismissing Delgado’s request for relief
under the PCRA.

The Superior Court found that Delgado’s

PCRA petition was untimely filed and further noted that
it had in a prior case “rejected the argument that
Alleyne announced a new constitutional right under the
PCRA that applies retroactively.”3

(Doc. 1, at 23-24.)

Delgado filed a petition for allowance fo appeal with

3. The Court of Appeals for the Third Circuit has also
held that the Supreme Court’s decision in Alleyne
setting forth a new rule of constitutional law that any
fact that increased a mandatory minimum sentence was an
element of the offense that had to be submitted to the
jury and proved beyond a reasonable doubt was not
applicable to cases on collateral review, and thus did
not provide a basis for authorization of second or
successive motions to vacate under 28 U.S.C. § 2255.
United States v. Winkelman, 746 F.3d 134, 136 (3d Cir.
2014); see also Miller v. Mooney, 2016 WL 7375015, at
*2 (E.D.Pa. Dec. 19, 2016). The Miller case involved a
state inmate who filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254 where the inmate claimed
that his 1984 mandatory state sentence of life
imprisonment was unlawful in light of the Alleyne
decision. The district court held that reliance on
Alleyne was misplaced because it was decided after the
inmate was sentenced, was not retroactive, and the oneyear period of limitations barred his federal habeas
petition.
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the Supreme Court of Pennsylvania which was denied on
September 27, 2016. (Doc. 1, at 26.)
Discussion
There is a one-year statute of limitations for
filing a

§ 2254 petition for writ of habeas corpus.

See 28 U.S.C. § 2244(d)(1).

For our purposes, that

period starts to run from the date the conviction
becomes final, defined in section 2244(d)(1)(A) as “the
date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review.”

However, 28 U.S.C. §

2244(d)(2) also provides that “[t]he time during which a
properly filed application for State post-conviction or
other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward
any period of limitation[.]”

We will first address the

question of when Delgado’s conviction became final for
purposes of the commencement of the 1-year statute of
limitations and then address whether there is any other
time excluded under §2244(d)(2).
As stated above, Delgado was sentence on April
25, 2005.

Delgado did not take a direct appeal and his
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sentence became final on May 25, 2005. The period of
time which elapsed from the date his sentence became
final until Delgado filed his first PCRA petition is
well in excess of 1 year.

That time is

the 1-year statute of limitations.

counted towards

Consequently,

Delgado’s present habeas petition filed on October 31,
2016, is untimely filed.
An appropriate order will be entered.

s/Sylvia Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: December 27, 2016

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