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Frank Desan v. Raymond M. Lawler

May 24, 2011

FRANK DESAN
v.
RAYMOND M. LAWLER, ET AL.



The opinion of the court was delivered by: J. William Ditter, Jr., Sr. J.

MEMORANDUM

Presently before this court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Frank Desan, the response thereto and Desan's reply. Desan, who is currently incarcerated in the State Correctional Institution in Huntingdon, Pennsylvania, challenges his incarceration for possession of a controlled substance with intent to deliver and acquisition of a controlled substance by fraud. For the reasons that follow, the petition will be denied.

FACTS AND PROCEDURAL HISTORY:

On August 10, 2004, Desan was arrested on drug related charges.*fn1 On January 25, 2005, Desan filed a motion to suppress the evidence seized during the course of his arrest. After a hearing held on February 2, 2005, the suppression court denied Desan's motion. On October 5, 2006, a jury in the Court of Common Pleas of Delaware County found Desan guilty of possession of a controlled substance with intent to deliver ("PWID") and acquisition of a controlled substance by fraud.*fn2 Desan was sentenced to three (3) to six (6) years of imprisonment for his PWID conviction and a consecutive term of one (1) to two (2) years of imprisonment followed by two (2) years of probation for the acquisition of a controlled substance by fraud conviction.

Desan filed a direct appeal arguing that the trial court erred in denying his motion to suppress the evidence obtained during the course of his arrest. The Pennsylvania Superior Court affirmed the judgment of sentence on February 4, 2008. Commonwealth v. Desan, No. 65 EDA 2007 (Pa. Super. Feb. 4, 2008) (unpublished memorandum). The Pennsylvania Supreme Court denied Desan's petition for allowance of appeal on August 6, 2008. Commonwealth v. Desan, No. 146 MAL 2008 (Pa. Aug. 6, 2008).

A search of Desan's backpack yielded 24 packets of heroin with a total weight of .65 grams, 16 packets of cocaine with a total weight of 4.6 grams, 65 pills containing codeine, a tablet of oxycodone, 6 tablets containing Alprazolam, and 37 tablets containing Lorazepam, all controlled substances. The backpack also contained syringes and needles.

Commonwealth v. Desan, No. 65 EDA 2007, at 1-2 (Pa. Super. Feb. 4, 2008) (unpublished memorandum).

Desan filed this petition for a federal writ of habeas corpus on July 28, 2009,*fn3 claiming that his conviction was obtained by use of evidence obtained pursuant to an unlawful arrest. Respondents have filed an answer to Desan's habeas petition asserting that Desan is not entitled to federal habeas relief because his claim is non-cognizable and meritless. Desan has filed a reply thereto.

DISCUSSION:

A. Standard of Review

Pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a petition for habeas corpus may only be granted if (1) the state court's adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of the United States;" or if (2) the adjudication resulted in a decision that was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). Factual issues determined by a state court are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing 28 U.S.C. § 2254(e)(1)).

B. Fourth Amendment Claim

Desan argues that the trial court violated his Fourth Amendment right to be free of unreasonable searches and seizures because it failed to suppress evidence seized after the arresting officer searched him without reasonable cause. Desan's Fourth Amendment claim is governed by the Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976), which states:

[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas relief on the ground that evidence obtained in an ...


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