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
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
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  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  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  pounds of marijuana in [Petitioner's]
truck, twenty-one  pounds of marijuana in
[Petitioner's] residence, and thirteen  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
Mr. and Mrs. Wileman filed motions seeking to
suppress the evidence seized by the police. Following two 
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
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;
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
1. Ineffectiveness of trial counsel for
withdrawing Petitioner's suppression
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
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.
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.
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 ...