Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ORTEGA v. VAUGHAN

April 15, 2004.

BENNY L. ORTEGA
v.
DONALD T. VAUGHAN, et al



The opinion of the court was delivered by: PETER SCUDERI, Magistrate Judge

REPORT AND RECOMMENDATION

Before the court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Benny L. Ortega ("Petitioner"), an individual currently incarcerated in the State Correctional Institution in Graterford, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed.

I. FACTS AND PROCEDURAL HISTORY

  The Pennsylvania Superior Court summarized the facts of this case as follows:
From August 1994 to August 1995, Appellants*fn1 were involved in a drug organization which smuggles illegal narcotics (cocaine and marijuana) from Mexico. into the United States, particularly Chester County, Pennsylvania. Generally, [Petitioner] and Mrs. Ortega transported the narcotics and stored the narcotics at their residence until [Petitioner] was able to distribute the narcotics to various drug dealers, including his brother-in-law, Mr. Wileman.
During the autumn of 1994, Pennsylvania State Police Trooper Kelly Cruz was working undercover in Chester County when he met Chris Wilson, a drug dealer. Beginning in January 1995, Trooper Cruz executed numerous controlled buys of cocaine between himself and Mr. Wilson and, at some point, Wilson told Trooper Kelly that [Petitioner] was his supplier. In early March 1995, Trooper Kelly secured a warrant permitting him to install an electronic device, a pen register, on Wilson's telephone line which would permit the police to discover which telephone numbers Wilson was dialing on a regular basis.
In April 1995, Trooper Cruz met Wilson and indicated that he wanted to buy some cocaine. Through the use of the pen register, the police discovered that Wilson immediately called [Petitioner] after Trooper Cruz asked for cocaine. After receiving the cocaine from Wilson, Trooper Cruz requested marijuana. When Wilson delivered the marijuana to Trooper Cruz, Wilson was arrested.
In exchange for the promise of a recommendation for leniency, Wilson agreed to cooperate with the police and disclosed the details regarding the "drug ring" at issue. Particularly, Wilson indicated that his supplier was [Petitioner] and that he had purchased cocaine and marijuana from [Petitioner] at least twice a week for the past fifty-two [52] weeks. He also disclosed that Mr. Wileman was one of [Petitioner's] drug dealers.
In order to corroborate Wilson's accounts, beginning in June 1995, the police arranged numerous controlled buys between Wilson and [Petitioner], during which Wilson wore a body wire. With the aid of the body wire, the police listened to at least three [3] conversations between Wilson and [Petitioner]. In a July 14, 1995 conversation, [Petitioner] revealed that Mr. Wileman was one of his drug dealers and that he sometimes stored narcotics at his residence for [Petitioner]. Shortly thereafter, the police observed a controlled buy of cocaine between Mr. Wileman and Wilson, who was wearing the body wire.
Based on all of the information gathered by the police, the police secured search warrants for the Ortega and Wileman residences. When the search warrants were executed, the police discovered seventy [70] pounds of marijuana in [Petitioner's] truck, twenty-one [21] pounds of marijuana in [Petitioner's] residence, and thirteen [13] pounds of marijuana in the Wileman residence. Based on the results of the searches, [Petitioner] and Mrs. Ortega and Mr. and Mrs. Wileman were arrested and charged with various narcotic and criminal conspiracy crimes.
Mr. and Mrs. Wileman filed motions seeking to suppress the evidence seized by the police. Following two [2] evidentiary hearings, the lower court denied the motions. . . .
Commonwealth v. Ortega, No. 3991 Phila. 1996, at 4-7 (Pa. Super. Nov. 30, 1998) (memorandum opinion).

  On July 17, 1996, Appellants proceeded to a jury trial before the Honorable James P. MacElree of Chester County, Pennsylvania.*fn2 On July 30, 1996, Petitioner was convicted of criminal conspiracy; forty-five (45) counts of possession of a controlled substance (marijuana and cocaine); and forty-five (45) counts of possession of a controlled substance with intent to deliver. On September 26, 1996, Judge MacElree sentenced Petitioner to an aggregate term of 125 to 250 years of imprisonment.

  On November 12, 1996, Petitioner appealed his judgment of sentence to the Pennsylvania Superior Court.*fn3 On November 30, 1998, the Superior Court affirmed the judgment of sentence by memorandum opinion. Commonwealth v. Ortega, 736 A.2d 12 (Pa. Super. 1998) (table). On February 9, 1999, the Superior Court denied Petitioner's petition for re-argument. Petitioner filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court, which was denied on September 7, 1999. Commonwealth v. Ortega, 743 A.2d 918 (Pa. 1999) (table). Petitioner did not file a Petition for a Writ of Certiorari with the United States Supreme Court. On September 6, 2000, Petitioner filed a counseled petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq.*fn4 On April 16, 2001, following two (2) evidentiary hearings, the PCRA court denied Petitioner's petition. Petitioner filed an appeal with the Pennsylvania Superior Court, arguing:
1. Trial court error in failing to suppress evidence and statements gathered as a result of a body and hard wire;
2. Ineffectiveness of trial counsel for withdrawing a pre-trial suppression motion; and
3. PCRA court error in finding issues relating to trial counsel ineffectiveness to be waived.
On January 30, 2002, the Superior Court affirmed the denial of PCRA relief by memorandum opinion. Commonwealth v. Ortega, 797 A.2d 375 (Pa. Super. 2002) (table). Petitioner did not file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court.

  On February 22, 2002, Petitioner filed a pro se PCRA petition. On June 24, 2002, the PCRA court dismissed Petitioner's second PCRA petition as untimely. Petitioner appealed to the Pennsylvania Superior Court, which affirmed the dismissal of the second PCRA petition by memorandum opinion dated June 9, 2003. Commonwealth v. Ortega, 830 A.2d 1501 (Pa. Super. 2003) (table). Once again, Petitioner did not file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court.

  On June 16, 2003, Petitioner filed the instant pro se petition for writ of habeas corpus,*fn5 arguing:
1. Ineffectiveness of trial counsel for withdrawing Petitioner's suppression motion;
2. Prosecutorial misconduct for failing to disclose information in violation of the Pennsylvania Wiretap Act;
3. Trial court error in holding a suppression hearing in Petitioner's absence, resulting in the alleged erroneous withdrawal of Petitioner's suppression motion by trial counsel;
4. Ineffectiveness of appellate counsel for failing to raise claims (1) through (3) on direct and/or collateral appeal; and
5. Trial court error in sentencing.*fn6
On December 19, 2003, Respondents filed an answer asserting that Petitioner's claims are time-barred or, in the alternative, are unexhausted and procedurally defaulted and/or meritless. On March 12, 2004, Petitioner filed a traverse and a volume of exhibits.

 II. DISCUSSION

  Section 101 of the AEDPA, effective April 24, 1996, amended habeas corpus law by imposing a one (1) year limitation period to applications for writ of habeas corpus filed by persons in state custody. 28 U.S.C.A. § 2244(d)(1). Section 2244, as amended, provides that the one (1) year 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;
(B) the date on which the impediment to filing an application created by state action in violation of the Constitution or 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 exercise of due diligence.
28 U.S.C. § 2244(d)(1). The amended statute also provides that the time during which a properly filed application for state post-conviction or other collateral review is pending shall not be counted toward any period of limitation. 28 U.S.C. § 2244(d)(2).

  In the instant case, the applicable starting point for the statute of limitations is "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (citing Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999)). Petitioner's conviction became final on December 6, 1999, the deadline for filing a writ of certiorari to the United States Supreme Court on direct appeal. See Kapral, 166 F.3d at 575. Thus, Petitioner had until December 6, 2000, plus any time during which the limitations period was tolled, to file his federal habeas petition.

  A. Statutory Tolling

  Petitioner's one — (1-) year grace period for filing a federal habeas petition commenced running on December 7, 1999, and continued to run until it was tolled by the filing of Plaintiffs first PCRA petition on September 6, 2000.*fn7 At that time, a period of approximately 275 days had run on the one — (1-) year grace period, and 90 days remained. See 28 U.S.C. § 2244(d)(2). Petitioner's first PCRA petition was pending in the state courts from September 6, 2000, until January 30, 2002, when the Pennsylvania Supreme Court declined discretionary review of the order denying his PCRA petition.*fn8 Therefore, the AEDPA statute of limitations period re-commenced on January 30, 2002, at which time Petitioner had 90 days remaining of the original one (1-) year grace period.

  On February 22, 2002, Petitioner filed pro se his second PCRA petition. However, the PCRA court dismissed the second PCRA petition as untimely, and the Pennsylvania Superior Court affirmed the dismissal by memorandum opinion dated June 9, 2003. Because Petitioner's second PCRA petition was dismissed as untimely, it did not toll the running of the AEDPA statute of limitations. See Merritt v. Blaine, 326 F.3d 157, 166-167 (3d Cir. 2003) (holding untimely PCRA petition not "properly filed" for purpose of AEDPA tolling provision, and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.