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Jose Antonio Peroza-Benitez v. Raymond M. Lawler

September 23, 2011

JOSE ANTONIO PEROZA-BENITEZ
v.
RAYMOND M. LAWLER, ET AL.



The opinion of the court was delivered by: Slomsky, J.

OPINION

I. INTRODUCTION

Before the Court is the Petition of Jose Antonio Peroza-Benitez ("Petitioner") for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner seeks review of his pro se petition for collateral relief under the Pennsylvania Post-Conviction Relief Act ("PCRA") based on alleged violations of the Merger Doctrine and the Double Jeopardy Clause. He also alleges ineffective assistance of counsel. For purposes of this Opinion, the Court has considered the Petition for Writ of Habeas Corpus (Doc. No. 4), the Answer to the Motion for Writ of Habeas Corpus (Doc. No. 7), Chief Magistrate Judge Thomas J. Rueter's Report and Recommendation ("Report and Recommendation") (Doc. No. 10), the Court's Order approving and adopting Judge Rueter's Report and Recommendation ("Order") (Doc. No. 11), Petitioner's Objection to the Report and Recommendation ("Objection") (Doc. No. 12), and the pertinent state court record.

Following a review of the filings by the parties and the state court record, Judge Rueter issued a Report recommending Petitioner's Petition for Writ of Habeas Corpus be denied and a Certificate of Appealability not be granted. (Doc. No. 10). Petitioner did not file objections to the Magistrate Judge's Report and Recommendation within the required fourteen (14) day period. This Court then issued an Order adopting and approving Judge Rueter's Report and Recommendation and denying the Petition for a Writ of Habeas Corpus. (Doc. No. 11). Thereafter, Petitioner filed his Objection to the Report and Recommendation. (Doc. No. 12). The Court will now consider those objections despite the earlier Order adopting and approving Judge Rueter's Report and Recommendation. For reasons that follow, the Court will affirm its prior Order (Doc. No. 11). Petitioner's Objection to Judge Rueter's Report and Recommendation does not warrant the relief he requests (Doc. No. 12).

II. FACTUAL BACKGROUND

On December 13, 2006, in his criminal case in the Court of Common Pleas of Berks County, Petitioner entered an open guilty plea to one count of delivery of a controlled substance (heroin), two counts of possession with intent to deliver a controlled substance (heroin), and resisting arrest. (Doc. No. 10 at 1). The plea was accepted and Petitioner received an aggregate sentence of seven (7) to fourteen (14) years incarceration. (Id.).

On June 15, 2007, the Superior Court of Pennsylvania affirmed Petitioner's sentence. Commonwealth v. Peroza-Benitez, 931 A.2d 51 (Pa. Super. Ct. 2007) (Table). Petitioner did not file for an allowance of appeal to the Supreme Court of Pennsylvania.

On August 31, 2007, Petitioner filed a pro se petition for relief under the PRCA, 42 Pa. Cons. Stat. Ann. §§ 9541, et seq. (Doc. No. 11 at 2). Counsel was appointed to represent him on the PCRA. (Id.) On July 24, 2008, the court dismissed the motion for PCRA relief. (Id.) Thereafter, on September 16, 2009, the Superior Court of Pennsylvania affirmed the denial of the PCRA Petition. Commonwealth v. Peroza-Benitez, 986 A.2d 1262 (Pa. Super. Ct. 2009) (Table). On April 12, 2010, the Supreme Court of Pennsylvania denied Petitioner's request for allowance of appeal. Commonwealth v. Peroza-Benitez, 92 A.2d 887 (Pa. 2010) (Table).

On September 6, 2010, Petitioner filed the instant Petition for a Writ of Habeas Corpus. (Doc. No. 4). The Petition alleges five grounds for relief, which are quoted verbatim:

A. Whether the trial court abused its discretion by sentencing petitioner to an illegal sentence, due to petitioner being sentence [sic] in violation of the Merger Doctrine where the charges arose out of a single act, same transaction.

B. Whether the trial court abused its discretion by sentencing petitioner to an illegal sentence in violation of the Double Jeopardy Clause and Federal rights violation of his 5th and 14th Amendments to the U.S. and Pennsylvania Constitutions, as well as article 1, section 9 of [the] Pennsylvania Constitutions.

C. Whether the plea and sentencing counsel was ineffective for failing to challenge petitioner's illegal sentence on [the] sentencing hearing date, where the sentence is in violation of the Merger Doctrine and Double Jeopardy Clause, under Federal law including the 5th, 6th and 14th Amendments to the U.S. Constitution.

D. Whether Appellate Counsel was ineffective for failing to challenge petitioner's illegal sentence, where the sentence is in violation of the Merger Doctrine and Double Jeopardy Clause under the 5th, 6th, and 14th Amendments to the U.S. Constitution and in violation under the Pennsylvania Constitution Article 5, Section 9, right to Direct Appeal.

E. Whether PCRA counsel was ineffective and negligent in the manner in which the PCRA was handled and for counsel's unprofessional errors. (Doc. No. 4 at 5). On November 17, 2010, the Commonwealth responded, arguing ...


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