Opinion
CIVIL ACTION No. 03-3693
April 15, 2004
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 follows:
From August 1994 to August 1995, Appellants 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 arrested.
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 [52] 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 [3] 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 [70] pounds of marijuana in [Petitioner's] truck, twenty-one [21] pounds of marijuana in [Petitioner's] residence, and thirteen [13] 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 conspiracy crimes.
Mr. and Mrs. Wileman filed motions seeking to suppress the evidence seized by the police. Following two [2] 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).
Appellants on direct appeal were Petitioner and his co-defendants, Dorothea Diane Ortega ("Mrs. Ortega"), Donald Wileman ("Mr. Wileman"), Mary Sue Wileman ("Mrs. Wileman") and Jonathan Gonzalez ("Mr. Gonzalez").
On July 17, 1996, Appellants proceeded to a jury trial before the Honorable James P. MacElree of Chester County, Pennsylvania. 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.
At trial, Petitioner was represented by privately retained counsel, Robert C. Broderick, Jr., Esquire.
On November 12, 1996, Petitioner appealed his judgment of sentence to the Pennsylvania Superior Court. 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 direct appeal, Petitioner was represented by privately retained counsel, Joseph P. Green, Esquire.
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 seq. 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:
Petitioner privately retained P. J. Redmond, Esquire, for purposes of his first PCRA petition. Attorneys Redmond (collateral appeal counsel) and Green (direct appeal counsel) were members of the same law firm.
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; and
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, arguing:
Generally, a pro se petitioner's habeas petition is deemed filed at the moment he delivers it to prison authorities for mailing to the district court. Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988)). Petitioner signed his habeas petition on June 16, 2003; therefore, we will assume that he presented it to prison authorities on that date.
1. Ineffectiveness of trial counsel for withdrawing Petitioner's suppression motion;
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 counsel;
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.
In the instant petition for writ of habeas corpus, Petitioner's fourth claim is a re-statement of his second claim. Therefore, the court has re-worded and re-numbered Petitioner's claims for purposes of discussion.
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.
II. DISCUSSION
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.
A. Statutory Tolling
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. 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. 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.
The PCRA petition was "properly filed" and thus tolled the federal statute of limitations. 28 U.S.C. § 2244(d).
The ninety (90) day period during which a state prisoner may file a petition for a writ of certiorari in the United States Supreme Court from the denial of his state post-conviction petition does not toll the AEDPA limitations period. Stokes v. District Att'y of the County of Phila., 2001 WL 387516, at *4 (3d Cir. April 17, 2001).
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 federal courts are bound by state court's finding that PCRA petition was untimely); Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (same).
Because the untimely second PCRA petition did not toll the limitations period, Petitioner had 90 days from January 30, 2002, or until approximately May 2, 2002, to file his federal habeas petition. However, Petitioner filed the instant, pro se petition for writ of habeas corpus on June 16, 2003 — more than thirteen (13) months after the expiration of the one-(l-) year limitation period. Petitioner does not assert, nor do any of his claims suggest, that there has been an impediment to filing his habeas petition which was caused by state action; that his petition involves a right which was newly recognized by the United States Supreme Court; or that there are new facts which could not have been previously discovered. See 28 U.S.C. § 2244(d)(1)(B)-(D). Consequently, Petitioner would be barred from presenting his claims under § 2254, unless the instant petition is subject to equitable tolling.
In his traverse, Petitioner notes that he previously argued to the state courts that his second PCRA petition should be considered an extension of his first PCRA petition for purposes of timeliness.See Ptr.'s Traverse at 18. To the extent that Petitioner makes the same argument here, the argument must fail. The PCRA petitions were filed separately and in succession — one counseled, the otherpro se — and the state courts at all times considered them separately, denying the first petition and dismissing the second petition as untimely. Because there is no legal support for combining Petitioner's two (2) separate PCRA petitions into one (1) petition, further statutory tolling is not applicable.
B. Equitable Tolling
The Third Circuit has determined that the one (1) year period of limitation for § 2254 is subject to equitable tolling because this limitation period is a statute of limitations and not a jurisdictional bar. See Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998) (in considering a motion for extension of time to file petition for writ of habeas corpus, district court must apply equitable principles in applying the one (1) year limitation period). Equitable tolling is proper only "in the rare situation where [it] is demanded by sound legal principals as well as the interests of justice." Jones v. Morton, 195 F.3d 153, 159 (1999) (quotingUnited States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). The Third Circuit has set forth two (2) general requirements for equitable tolling: "(1) that `the petitioner has in some extraordinary way been prevented from asserting his or her rights;' and (2) that the petitioner has shown that `he or she exercised reasonable diligence in investigating and bringing [the] claims.'" Merritt, 326 F.3d at 168 (quoting Fahy, 240 F.3d at 244). The Third Circuit has also identified three (3) circumstances where equitable tolling may be appropriate: (1) where the petitioner has been actively misled, (2) where petitioner has `in some extraordinary way' been prevented from asserting his rights, or (3) where petitioner has timely asserted his rights mistakenly in the wrong forum. Johnson v. Hendricks, 314 F.3d 159, 162 (3d. Cir. 2002); Jones, 195 F.3d at 159.
Petitioner attempts to show "extraordinary circumstances" arising from alleged errors made by the state courts in disposing of his PCRA petitions. Essentially, he argues that the state courts on collateral appeal improperly failed to consider a claim of ineffectiveness of direct appellate counsel for failing to raise a claim of ineffectiveness of trial counsel for withdrawing Petitioner's motion to suppress, and that the state courts' failure to consider the claim constituted an "objective factor external to the defense" that hindered him from complying with state procedural rules. See Ptr.'s Traverse at 20-22. I disagree. As noted by Petitioner, retained PCRA counsel did not raise a claim of ineffectiveness of direct appellate counsel (who was from the same firm) except in the most indirect manner and as part of an alternative prayer for relief in a brief that followed two (2) hearings by the PCRA court on other issues. See Ptr.'s Traverse at 20 and Traverse Exhibit "F" at 6-7. Moreover, to the extent that this language was sufficient to raise the claim, counsel explicitly stated that consideration of the claim was triggered by the PCRA court first finding that trial counsel was ineffective for having withdrawn Petitioner's suppression motion. As previously noted, the PCRA court made no such finding, and instead denied Petitioner's first PCRA petition. In affirming the denial, the Pennsylvania Superior Court explained that all issues relating to the withdrawal of Petitioner's suppression motion had been waived and could not be reviewed because Petitioner's counsel had withdrawn the suppression motion prior to the suppression court ruling on the motion; that the PCRA court properly found a claim of ineffectiveness of trial counsel for withdrawing the suppression motion to have been waived because it was not raised on direct appeal; and that the PCRA court's waiver determination was correct because Petitioner could have raised the claim on direct appeal, but did not. See Commonwealth v. Ortega, No. 1342 EDA 2001, at 3-4 (Pa.Super. Jan. 30, 2002). Taken to a logical conclusion, Petitioner's argument would mean that any unfavorable procedural ruling by the PCRA court would amount to an "objective factor external to the defense" sufficient to warrant equitable tolling, which of course cannot be the case.
PCRA counsel's alternative prayer for relief stated:
Alternatively, if the court finds that [Petitioner] was deprived of this right [of effective assistance of trial counsel], and that present counsel should have raised it on direct appeal despite not having known that [Petitioner] did not authorize or know about trial counsel's surrender of [Petitioner's] claim, [Petitioner] asks that he be awarded a new trial based on the same underlying claim.See Ptr.'s Traverse at Exhibit "F," pp. 6-7.
The PCRA court found Petitioner's claim of ineffectiveness of trial counsel for withdrawing the suppression motion had been waived because it was not raised on direct appeal. Nevertheless, the PCRA court also addressed the merits of the claim, finding that trial counsel's tactical decision to withdraw the suppression motion did not amount to ineffectiveness because the motion would have failed on the merits.See Commonwealth v. Ortega, 3056-3095, 3121-3195, 4276-4295 Crim. No., at 3-6 (Chester Co. C.C.P. April 16, 2001).
More importantly, I find that Petitioner was not "`in some extraordinary way" prevented from asserting his rights. Petitioner argues that he was unaware that trial counsel withdrew his motion to suppress until the Pennsylvania Superior Court affirmed the judgment of sentence on direct appeal, and that he therefore could not raise the claim until collateral appeal, by which time the state courts found the claim to have been waived. This line of reasoning is fatally flawed, however, because the withdrawal of the suppression motion could have been discovered by Petitioner before he filed a direct appeal had he simply reviewed the notes of testimony. Moreover, even though Petitioner was aware at the conclusion of his direct appeal that trial counsel had withdrawn his suppression motion, Petitioner chose to retain a different attorney from the same law firm to pursue his collateral appeal, rather than filing either a pro se PCRA petition or a PCRA petition using an attorney from a different law firm. Therefore, to the extant that PCRA counsel failed to clearly and unequivocally raise an ineffectiveness claim as to direct appellate counsel (who was, as previously mentioned, an attorney from the same firm), the court notes that there is no constitutional guarantee of effective assistance on collateral appeal, and that the decision to retain the same law firm rested with Petitioner.
These decisions — each of which were made by Petitioner — resulted in consequences that were unfavorable for Petitioner, but which do not create an "extraordinary circumstance" sufficient to trigger equitable tolling. Additionally, in order to obtain equitable tolling, a petitioner must demonstrate that an "extraordinary circumstance" — assuming one existed — actually prevented him from filing his habeas petition on time. See Miller, 145 F.3d at 618. Here, after the Pennsylvania Supreme Court declined to review the denial of his first PCRA petition, Petitioner had 90 days remaining of the original one (1-) year grace period in which to file a timely federal habeas petition. Although three (3) months is plenty of time to file a timely habeas petition, Petitioner instead chose to file a pro se second PCRA petition that turned out to be untimely and, therefore, did not toll the AEDPA limitations period. For this additional reason, equitable tolling is not appropriate. See Merritt, 326 F.3d at 168 (stating equitable tolling requires that petitioners exercise reasonable diligence in investigating and bringing claims). Finally, to the extent that Petitioner miscalculated the AEDPA limitation period, or erroneously believed that his pro se second PCRA petition tolled the AEDPA, such error also does not trigger equitable tolling. See Miller, 145 F.3d at 618-619.
For all of the aforementioned reasons, I do not find the instant matter to be one of "rare situation[s] where equitable tolling is demanded by sound legal principals as well as the interests of justice." See Jones, supra. Because Petitioner has not established "extraordinary circumstances" which would justify application of equitable principles, this court finds that there are no circumstances which would make the rigid application of the limitation period unfair. Accordingly, the instant petition should be dismissed as untimely.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of April, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be DISMISSED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and Respondents' answer thereto, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections made thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition filed pursuant to 28 U.S.C. § 2254 is DISMISSED.
3. There is no basis for the issuance of a certificate of appealability.