PEROZA-BENITEZ v. LAWLER et al

Filing 10

REPORT AND RECOMMENDATIONS THAT THE COURT RESPECTFULLY RECOMMENDS THAT THE PETITION FOR A WRIT OF HABEAS CORPUS BE DENIED AND THAT NO CERTIFICATE OF APPEALABILITY BE ISSUED. PETITIONER MAY FILE OBJECTIONS TO THE REPORT AND RECOMMENDATION. FAILURE TO FILE TIMELY OBJECTIONS MAY CONSTITUTE A WAIVER OF APPELLATE RIGHTS. OBJECTIONS TO R&R DUE BY 2/28/2011. SIGNED BY MAGISTRATE JUDGE THOMAS J. RUETER ON 2/8/11. 2/9/11 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED TO COUNSEL.(lvj, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

February 9, 2011

RE:

JOSE ANTONIO PEROZA-BENlTZ V. LAWLER, ETAL
CA No. 10-3684

NOTICE
Enclosed herewith please find a copy of the Report and Recommendation filed by United
States Magistrate Judge Rueter, on this date in the above captioned matter. You are hereby notified that
within fourteen (14) days from the date of service of this Notice of the filing of the Report and
Recommendation ofthe United States Magistrate Judge, any party may file (in duplicate) with the clerk
and serve upon all other parties written objections thereto (See Local Civil Rule n.1IV (b». Failure
of a party to file timely objections to the Report & Recommendation shall bar that party, except

upon grounds of plain error, from attacking on appeal the unobjected-to factual findings and
legal conclusions of the Magistrate Judge that are accepted by the District Court Judge.
In accordance with 28 U.S.c. §636(b)(l)(B), the judge to whom the case is assigned will
make a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made. The judge may accept, reject or modify, in whole or in
part, the findings or recommendations made by the magistrate judge, receive further evidence or
recommit the matter to the magisrrate judge with instructions.
Where the magistrate judge has been appointed as special master under F.R.Civ.P 53,
the procedure under that rule shall be followed.

MICHAE E. KUNZ
Clerk of ourt

cc:

PERaZA-BENITEZ
KUNE

Courtroom Deputy to Judge Slomsky

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSE ANTONIO PEROZA-BENITEZ

CNILACTION

v.
RAYMOND LAWLER, et al.

NO. 10-3684

REPORT AND RECOMMENDATION
THOMAS J. RUETER
Chief United States Magistrate Judge

February 8, 2011

Presently before the court is a pro se petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. For the reasons that follow, the court recommends that the
petition be denied.

I.

BACKGROUND
On December 13, 2006, petitioner entered an open plea to one count of delivery of

a controlled substance (heroin), two counts of possession with intent to deliver a controlled
substance (heroin), two counts of possession of a controlled substance (heroin), and resisting
arrest. After accepting the plea, a judge for the Court of Common Pleas for Berks County
sentenced petitioner to an aggregate sentence of seven (7) to fourteen (14) years incarceration.
Petitioner appealed to the Superior Court of Pennsylvania, which affirmed the
sentence on June 15,2007. Commonwealth v. Peroza-Benitez, 931 A.2d 51 (Pa. Super. Ct.
2007) (Table). Petitioner did not file a petition for allowance of appeal in the Supreme Court of
Pennsylvania.

On August 31, 2007, petitioner filed a pro ~ petition for relief under
Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa, Cons. Stat. Ann. §§ 9541, et seq,
The court appointed counsel to represent petitioner, On July 24, 2008, the court issued an order
dismissing petitioner's motion for PCRA relief, Petitioner filed an appeal to the Superior Court
of Pennsylvania, which affirmed on September 16,2009, Commonwealth v, Peroza-Benitez,
986 A2d 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. PerozaBenitez, 92 A2d 887 (Pa. 2010) (Table).
On September 6,2010, petitioner filed the instant petition for a ",Tit of habeas
corpus in this court (Doc. No.4), alleging the following five grounds for relief:
I.

Whether the trial court abused ils 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.

2.

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 I, section 9 of [the}
Pennsylvania Constitutions.

Under Pennsylvania law, the common law doctrine of merger "is to a large extent
coterminous with the double jeopardy protection against multiple punishments." Commonwealth
v. Williams, 496 A,2d 31, 39 (Pa. Super. Ct. 1985). "The doctrine acts to limit the multiplicity
of sentences which may be meted out for what is, in practical effect, a single criminal act, even
when a comparison of the elements of the various crimes charged does not reveal that any of
those crimes is necessarily included in any other." !!1. at 40. Application of the merger doctrine
is a two-step process: first, the court must determine whether more than one discrete criminal act
is involved; and second, if the defendant committed only one criminal act, the court must
determine whether the Commonwealth had only one interest that was injured by the single
criminal act. Commonwealth v. Williams, 509 A,2d 409, 411 (Pa. Super. Ct. 1986).
2

3.

Whether plea and sentencing counsel was ineffective for failing to
challenge petitioner's illegal sentence on [theJ 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 of the U.S. Constitution.

4.

Whether Appellate Counsel was ineffective for failing to challenge
petitioner's illegal sentence, where the sentence is in violation ofthe
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.

5.

Whether PCRA counsel was ineffective and ncgligent in the manner in
which the PCRA was handled and for counsel's unprofessional errors.

(Pet. at 5.) On November 17, 2010, the Commonwealth filed a response to the petition (Doc. No.
7) arguing that the petition should be denied on the merits.

II.

DISCUSSION
1.

Grounds One and Two - Merger Doctrine and Double Jeopardv
Petitioner claims that the sentence imposed by the trial court violated the Merger

Doctrine and the double jeopardy clause of the United States Constitution. To understand
petitioner's arguments, it is helpful to review the factual basis for petitioner's guilty plea. During
the guilty plea colloquy, petitioner admitted that on March 15, 2006, on the 100 block of South
Sixth Street in Reading, Pennsylvania, he delivered heroin, specifically two (2) packets of heroin,
to an undercover police officer in exchange for twenty dollars. This offense was the basis for
petitioner'S plea of guilty (0 delivery of a controlled substance (Count One), possession with
intent to deliver a controlled substance (Count Two), and simple possession (Count Four). The
sentencing court merged these three offenses for sentencing purposes, and petitioner received a
term of imprisonment of three to six years for these offenses.

3

Later the same day, on March 15,2006, when petitioner was arrested for the sale
of the heroin to the undercover officer, the police discovered additional heroin on petitioner's
person that he admitted he intended to sell on the streets of Reading. This additional heroin,
found hours after the initial sale, constituted a separate offense of possession with intent to
deliver a controlled substance, as well as simple possession, as charged in Counts Three and Five
of the Indictment. As the trial judge found:
There was no evidence to connect the heroin sold to the undercover officer to the
additional heroin that the defendant had on his person at his arrest. The only
reason the two offenses were discovered at roughly the same time is that the
defendant was searched incident to arrest.
Commonwealth v. Peroza-Benitez, No. 1604-06, slip op. at 5 (C.P. Berks May 1,2008) (Bucci,
j.) For these two merged offenses, the trial court imposed a consecutive sentence of three to six

years imprisonment. Finally, on Count Six of the Indictment, charging resisting arrest, the trial
court imposed a consecutive sentence of one to two years imprisonment.
Petitioner argues that the trial court's separate sentences for delivery of heroin
(Counts One, Two and Four) and for possession with intent to deliver heroin (Counts Three and
Five) violate the principles of merger and double jeopardy. The Superior Court of Pennsylvania
rejected this claim finding that neither the merger doctrine nor double jeopardy applied because
petitioner committed two distinct criminal acts - (1) the delivery of two packets of heroin to the
police officer, and (2) the later possession ofthe additional thirty-nine packets, which he
intended to sell to other buyers. Commonwealth v. Peroza-Benitez, No. 1532 MDA 2008, slip
op. at 6-7 (pa. Super. Ct. Sept. 16,2009). In reaching this conclusion, the Superior Court of
Pennsylvania cited one of its earlier decisions, Commonwealth v. Eicher, 605 A.2d 337 (Pa.

4

Super. Ct.), appeal denied, 617 A.2d 1272 (Pa. 1992) (Table), in which the court held that a trial
court may impose separate sentences for delivery and possession with intent to deliver where the
underlying charges arose out of a completely different set of facts that are unrelated and
unnecessary to sustain the other conviction. Id. at 6.
The Fifth Amendment states that no person shall "be subjed for the same offense
to be twice put in jeopardy oflife or limb." "[TJhe Fifth Amendment guarantee against double
jeopardy is enforceable against the States through the Fourteenth Amendment." North Carolina
v. Pearce, 395 U.S. 716, 717 (1960). The double jeopardy clause "protects against multiple
punishments for the same offense." Id.
However, if a defendant commits two separate offenses at different times, the
crimes may be punished by consecutive sentences. See Milanovich v. United States, 365 U.S.
551,559 (1961) ("Two larcenies, separated in time, would not be merged."); Blockburger v.
United States, 284 U.S. 299, 302 (1952) (each of several successive sales of narcotics, even if
made to same person, constitutes a distinct offense, regardless of how closely sales follow each
other); United States v. Rodriguez-Ramirez, 777 F.2d 454, 457-58 (9th Cir. 1985) (separate
convictions and punishments for distribution of heroin sample and possession with intent to
distribute bulk of heroin were appropriate, where distribution of sample and possession of
remainder did not occur at sanle time, same place, and with involvement of same participants);
United States v. Countryman, 758 F.2d 574,579 (lIth Cir. 1985) (imposition of separate
sentences for convictions of possession with intent to distribute cocaine and distribution of
cocaine proper were appropriate in view of evidence sufficiently establishing possession of
cocaine by defendant independent from actual distribution to coconspirator).
5

This court finds that the state court's application of the above federal law was not
contrary to or an umeasonable application of clearly established federal law, nor did it result in a
decision based on an umeasonable determination of the facts in light of the evidence presented.
See 28 U.S.C. § 2254(d)(l) and (2). The delivery ofthe heroin by petitioner to the undercover
officer was sufficiently independent of petitioner's later possession of a larger quantity of heroin
to be distributed to a different buyer, so that the court could impose multiple punishments for the
separate offenses. For all the above reasons, the court recommends that petitioner's first two
claims be denied as meritless.

Z.

Grounds Three through Five - Ineffective Assistance of Counsel

Petitioner alleges three grounds of ineffective assistance of counsel. First, he
alleges that plea counsel was ineffective for failing to challenge petitioner's sentence. Second,
petitioner asserts that appellate counsel was ineffective for not raising the merger doctrine/double
jeopardy argument on direct appeal. Last, petitioner contends that PCRA counsel was ineffective
for unprofessional conduct.
To establish a claim of ineffective assistance of counsel, petitioner must show
both deficient performance and prejudice. Premo v. Moore, 131 S. Ct. 733, 739 (2011);
Strickland v. Washington, 466 U.S. 668, 688-96 (1984). Recently, the United States Supreme
Court explained the prejudice requirement for an ineffective assistance of counsel claim as
follows:
With respect to prejudice, a challenger must demonstrate "a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." It is not enough "to show
that the errors had some conceivable effect on the outcome of the proceeding."

6

Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable."
Harrington v. Richter, 131 S. Ct. 770,777-78 (2011)(citations omitted).
In the instant case, there was no prejudice by counsel's failure to challenge

petitioner's sentence because both the state court and this court have found that such a challenge
is meritless. Even if counsel had raised these challenges to petitioner's sentence, it was not
reasonably likely the result would have been different. Id. See also United States v. Sanders,
165 F.3d 248, 253 (3d Cir. 1999) (counsel cannot be ineffective for failing to pursue merit less
claims or objections). Furthermore, this court cannot review petitioner's claim that PCRA
counsel was ineffective because "[t]he ineffectiveness or incompetence of counsel during Federal
or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding
arising under section 2254." 28 U.S.C. § 2254(iV

In his petition, petitioner alleges violations of the Pennsylvania constitution. The
court may not address these claims because they are not cognizable in a federal habeas corpus
proceeding. Pursuant to 28 U.S.C. § 2254(a), a federal court cannot entertain a habeas petition
on any grounds other than that the petitioner is "in custody in violation of the Constitution or
laws or treaties of the United States." To the extent petitioner's claims allege violations of state
law, they are not cognizable in this § 2254 habeas proceeding. See Estelle v. McGuire, 502 U.S.
62,67-68 (1991) (federal courts cannot grant habeas relief based on violations of state law);
Reinert v. Larkins, 379 F.3d 76, 94 n.4 (3d Cir. 2004) (alleged violations of state constitution not
cognizable in a federal habeas petition), cer!. denied, 546 U.S. 890 (2005).
2

7

For all the above reasons, the court makes the following:

RECOMMENDATION
AND NOW, this 8th day of February, 2011, the court respectfully recommends
that the petition for a'lvrit of habeas corpus be DENIED, and that no certificate of appealability
be issued. J
Petitioner may file objections to the Report and Recommendation. See Loe. R.
Civ. P. 72.1. Failure to file timely objections may constitute a waiver of appellate rights.

BY THE COURT:

,-1ww... v

9· ~~ :;:

THOMAS J. RuEt£R
Chief United States Magistrate Judge

The COA should be denied because petitioner has not shown that reasonable
jurists could debate whether his petition should be resolved in a different manner or that the
issues presented are adequate to deserve encouragement to proceed further. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003).
J

8

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLV AN1A

CIVIL ACTION

JOSE ANTONIO PEROZA-BENITEZ
v.

NO. 10-3684

RAYMOND LAWLER, et al.

ORDER

AND NOW, this

, 2011, upon careful and independent

day of

consideration of the pleadings and record herein, and after review of the Report and
Recommendation of Chief Magistrate Judge Thomas J. Rueter, it is hereby
ORDERED
I.

The Report and Recommendation is APPROVED and ADOPTED;

2.

The petition for a writ of habeas corpus is DENIED; and

3.

A certificate of appealability is not granted.

BY THE COURT:

JOEL H. SLOMSKY,

J.