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Lanager v. Wynder

November 2, 2006


The opinion of the court was delivered by: Judge Conaboy


Background Jeffrey Lanager, an inmate at the State Correctional Institution, Dallas, Pennsylvania (SCI-Dallas), filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Named as Respondent is SCI-Dallas Superintendent James T. Wynder, Jr. Service of the petition was previously ordered.

Following a jury trial in the Court of Common Pleas of Centre County, Pennsylvania, Lanager was convicted of possession of a controlled substance; criminal conspiracy to possess a controlled substance; possession with intent to deliver a controlled substance on May 1, 1998 and criminal conspiracy to possess with intent to deliver a controlled substance. On August 14, 2000, Petitioner was sentenced to an aggregate five (5) to ten (10) year term of incarceration.

Petitioner's conviction stemmed from an investigation into the activities of suspected cocaine trafficker Andy Bekes. According to the undisputed record, the investigation included trash pulls, physical surveillance, pen register recording, a wiretap, the use of an informant, Jeffrey Flood, and a search of Bekes' motor vehicle wherein twelve (12) ounces of cocaine were seized. During April-May, 1998, Bekes placed numerous phone calls to Lanager. Bekes also visited Lanager's residence on April 15, 1998. Surveillance additionally established that the Petitioner visited the Bekes' residence on April 17, 1998.

On April 30, 1998, Bekes was followed on a trip to Wilkes-Barre, Pennsylvania where he met with an individual, Tricarico, who is described as being a source of cocaine for Bekes. Tricario was observed placing something in the trunk of Bekes' car. Bekes then drove home.

The next day, May 1, 1998, Lanager briefly visited Bekes' residence. A trash pull conducted by law enforcement officials later that day recovered 17 plastic bags with cocaine residue from Bekes' residence. Following a second trip by Bekes to see Tricarico in Wilkes-Barre, police stopped Bekes' car during his return trip, conducted a search, and recovered twelve (12) ounces of cocaine.

Agent Scott Merrill of the Pennsylvania State Attorney General's Office testified at trial. Merrill's trial testimony included his interpretation of the content of the electronic surveillance and other cumulative evidence which was introduced against Lanager and Bekes. Specifically, it was asserted that Lanager would order quantities of cocaine (in amounts which exceeded the norm for personal usage) from Bekes who would then obtain the requested amount from one of his sources, including Tricarico in Wilkes-Barre. The cocaine would than be conveyed from Bekes to Lanager.

Petitioner's conviction was affirmed following a direct appeal to the Pennsylvania Superior Court. See Commonwealth v. Lanager, 792 A.2d 615 (Pa. Super. 2001)(Table). The appeal unsuccessfully argued that the evidence was insufficient to support finding that Petitioner was in possession of cocaine on May 1, 1998, or had an intent to deliver cocaine. See Doc. 17, Exhibit B, p. 6.*fn1 Lanager also claimed that because the Commonwealth's case relied upon the May 20, 1998 seizure of cocaine from Bekes' car; the evidence was insufficient to establish that he was part of a criminal conspiracy to possess with intent to deliver cocaine. See id. He additionally raised a claim that Agent Merrill's testimony was not competent. See id. at p. 9. The Pennsylvania Supreme Court denied Lanager's subsequent request for allowance of appeal. See Commonwealth v. Lanager, 805 A.2d 521 (Pa. 2002)(Table).

Petitioner next initiated an action under Pennsylvania's Post Conviction Relief Act (PCRA).*fn2 After appointment of counsel and submission of an amended petition, the trial court denied relief on July 15, 2003. In an appeal to the Pennsylvania Superior Court, Petitioner raised two (2) arguments. First, he asserted that counsel provided ineffective assistance by not moving to suppress wiretap evidence obtained from Bekes. See Doc. 17, Exhibit M, p. 4. Second, Lanager argued that counsel erred by not objecting to Agent Merrill's opinion testimony. See id. The Superior Court affirmed the denial of PCRA relief. See Commonwealth v. Lanager, 852 A.2d (Pa. Super. 2004)(Table) Thereafter, the Pennsylvania Supreme Court denied Lanager's petition for allowance of appeal. See Commonwealth v. Lanager, 862 A.2d 1254 (Pa. 2004)(Table).

In his present action, Petitioner seeks federal habeas corpus relief on the grounds of: (1)"denial of effective assistance of counsel"; and (2) "conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure." Doc. 1, ¶ 12. With respect to his first claim, a supporting Memorandum accompanying the petition argues that trial counsel erred by not filing pre-trial motions in limine or otherwise objecting to the introduction of evidence obtained from trash pulls, pen register recordings, physical surveillance, telephone wiretaps of Andrew Bekes and a search of Bekes' automobile.

Counsel was also purportedly deficient by permitting Agent Merrill to be asked leading questions and offer hearsay testimony. It is also argued that Merrill was improperly allowed to give prejudicial interpretations regarding taped telephonic conversations between Lanager and Bekes. The petition concludes that the telephonic evidence used against him was unconstitutional because the order approving the initiation of an electronic wiretap mentioned only Bekes, thus, since Petitioner was not named in the request for electronic wiretap, his words were improperly seized. See Doc. 1, ¶ 12(B). Petitioner also claims that counsel erred by allowing informant, Jeffrey Flood, to testify as to drug transactions he conducted with Bekes.


Standard of Review

"The Antiterrorism and Effective Death Penalty Act of 1996 modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Specifically, when a federal-law issue has been adjudicated on the merits by a state court, the federal court reverses only when the decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1).*fn3 See generally, Gattis v. Snyder, 278 F.3d 222, 234 (3d Cir. 2002); Moore v. Morton, 255 F.3d 95, 104-05 (3d Cir. 2001). The Court has held ...

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