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Aponte v. Commonwealth

October 15, 2010

HERBERT APONTE, PETITIONER
v.
COMMONWEALTH OF PA, ET AL., RESPONDENTS



The opinion of the court was delivered by: Magistrate Judge Blewitt

Judge Caputo

REPORT AND RECOMMENDATION

I. Background

On September 24, 2010, Petitioner, Herbert Aponte, a resident of Bronx, New York*fn1, filed, pro se, the instant petition for habeas corpus, pursuant to 28 U.S.C. § 2254, against the following two (2) Respondents: Commonwealth of Pennsylvania; and Monroe County.*fn2 (Doc. 1). Petitioner included numerous attachments with his habeas petition. Petitioner indicates that he was convicted by a jury in the Monroe County Court of Common Pleas of an M3 (misdemeanor third degree) motor vehicle code hit and run offense, namely, leaving the scene of an accident involving damage to property.

Petitioner states that on January 4, 2007, he was sentenced to one year in prison on the stated offense. Petitioner claims, as he did in his previous §1983 civil rights action, that he was wrongfully convicted of the hit and run offense due to violations of his Fourth Amendment rights.

Specifically, as in his prior civil rights action, Petitioner seems to again claim that due to the unlawful search and seizure of evidence by PA State Trooper Cheponis he was unconstitutionally and wrongfully convicted at a jury trial on January 4, 2007, in Monroe County Court of Common Pleas. Petitioner avers that he was wrongfully charged and convicted of a misdemeanor of the third degree offense of hit and run (with no injuries) involving his automobile. Petitioner claims that he was wrongfully convicted of the hit and run offense on January 4, 2007, in a jury trial, since it was based on evidence illegally seized by Trooper Cheponis when the Trooper went to his home without a warrant and observed damage to his vehicle while it was parked in his garage.

Petitioner paid the required filing fee. (Doc. 4). The Habeas Petition has not yet been served on Respondents for a response.

We now give preliminary consideration to the Habeas Petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the U.S. District Courts, 28 U.S.C. foll. § 2254.*fn3 See Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa. 1979); Romero v. Holt, 2006 WL 3437360 (M.D. Pa.); Winfield v. Martinez, 2008 WL 4541945 (M.D. Pa.); Francis v. U.S., 2009 WL 1010522 (M.D. Pa.); Coss v. Warden of Lackawanna County Prison, 2008 WL 2697147 (M.D. Pa.).*fn4

II. Claims of Habeas Petition

Petitioner's habeas claims relate to his Monroe County, Pennsylvania, conviction of one count of hit and run (M3) with his automobile. The underlying events which form the bases of Petitioner's present Fourth Amendment claims took place between July 25, 2005 through January 4, 2007, when Petitioner was convicted at trial by a jury and sentenced to one year in prison.

Petitioner's attachments to his habeas petition indicate that on July 25, 2005, Trooper Cheponis parked his marked State Police vehicle in his driveway. Petitioner states that while Trooper Chaponis was talking to him, the Trooper illegally searched his garage, without a warrant or consent, and obtained evidence from Petitioner 's automobile which was parked in his garage, namely, the Trooper saw damage to the front right of Petitioner's vehicle. Petitioner claims that he was convicted of the hit and run offense on January 4, 2007, based on the illegal search by Trooper Cheponis. Petitioner states that the illegal search for evidence by Trooper Cheponis violated his Fourth Amendment rights.*fn5

Thus, Petitioner claims that his January 4, 2007 conviction was unconstitutional since it was based upon the illegally obtained evidence regarding damage to his automobile which was presented at trial by Trooper Chaponis.

Insofar as Petitioner is seeking to challenge his January 4, 2007 Monroe County conviction and sentence, Petitioner can no longer seek collateral relief regarding his Monroe County conviction via a habeas corpus petition filed under 28 U.S.C. ยง 2254 since he appears to have fully served his one-year sentence. Further, Petitioner cannot raise his Fourth Amendment claims in ...


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