ORTEGA v. HOLLINGSWORTH et al
MEMORANDUM re Petition for Writ of Habeas Corpus 1 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 4/13/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GIRSON J. ORTEGA,
THE ATTORNEY GENERAL OF
PENNSYLVANIA, et al.,
CIVIL NO. 1:16-CV-00552
On February 18, 2015, Petitioner Girson J.
Ortega, an inmate at the Federal Correctional
Institution at Fort Dix, New Jersey, filed in the United
States District Court for the District of New Jersey a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in which he challenges a sentence of 4 to 8 years
imposed by the Court of Common Pleas of Union County,
Pennsylvania, on January 26, 2011. (Doc. 1.) The
sentence of 4-8 years was to be served consecutively to
his current federal sentence.(Id.)
The petition is
brought pursuant to Rule 1(a)(2) of the Rules Governing
Section 2254 Cases in the United States District Court
which permits a petition for writ of habeas by “a person
in custody under a state-court or federal-court judgment
who seeks a determination that future custody under a
state-court judgment would violate the Constitution
laws, or treaties of the United States.”
to allege that his consecutive state sentence was the
result of ineffective assistance of counsel because he
was told that his sentence of 4 to 8 years would run
concurrently with his federal sentence.
$5.00 filing fee.
Ortega paid the
On March 29, 2016, the case was
transferred to this district.
(Docs. 21, 22.)
Because it did not plainly appear from the
petition that Ortega was entitled to relief the court
directed the Pennsylvania Attorney General and the
District Attorney of Union County respond to the
On May 10, 2016, the Attorney General of
Pennsylvania on behalf of the Commonwealth and the
District Attorney of Union County filed a response in
which it is argued that Ortega’s petition was not filed
1. Rule 4 of the Rules Governing § 2254 Cases, 28
U.S.C. foll. § 2254 states in pertinent part that
“[t]he clerk must promptly forward the petition to a
judge under the court’s assignment procedure, and the
judge must promptly examine it. If it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
court, the judge must dismiss the petition . . . .”
within one year of the date on which his judgment of
sentence became final thereby rendering his petition
Ortega did not file a traverse.
reasons set forth below Ortega’s petition will be
dismissed as untimely filed.
The essential facts are undisputed.
12, 2010, Ortega entered a plea of guilty to several
offense, including possession with intent to deliver a
controlled substance. (Doc. 40-1, at 15.)
26, 2011, Ortega received an aggregate sentence of four
to eight years to be served consecutively to a 15-year
federal sentence which he was serving. (Doc. 40-1, at 216.)
Ortega filed a motion for reconsideration of
sentence which was denied on March 18, 2011.
Commonwealth of Pennsylvania v. Girson Jason Ortega, CP60-CR-0000373-2008.2
Ortega took no direct appeal from
The court utilized the Unified Judicial System of
Pennsylvania Web Portal to review the docket of the
criminal case filed against Ortega in the Court of
Common Pleas of Union County. https://ujsportal.
pacourts.us/DocketSheets/CPReport.ashx?docketNumber=CP60-CR-0000373-2008 (Last accessed April 12, 2017). A
district court may take judicial notice of proceedings
the denial of the motion for reconsideration.
on March 28, 2011, Ortega filed a petition under the
Post-Conviction Relief Act, 42 Pa.C.S.
§§ 9541-9546, in
which he claimed his plea of guilty was induced by
ineffective assistance of counsel.
He claimed that
counsel advised him the state sentence would be served
concurrently to the federal sentence.
On October 28,
2011, the trial court held a hearing on Ortega’s
petition and at the conclusion of that hearing vacated
his sentence and permitted Ortega to withdraw his plea
of guilty. (Doc. 40-3, at 2-126.)
Commonwealth filed an appeal; the trial court in
response to that appeal filed an opinion pursuant to
Rule 1925(a) of the Pennsylvania Rules of Appellate
Procedure in which it stated that it erred and requested
the Superior Court to reverse the decision; and on
December 1, 2012, the Superior Court reversed the trial
in another court. See United States v. Wilson, 631 F.2d
118 (9th Cir. 1980); Hayes v. Woodford, 444 F.Supp.2d
1127, (S.D. Cal. 2006)(“[F]ederal courts may take
judicial notice of other courts’ proceedings, within
the federal judiciary and without, if the proceedings
directly relate to the matter before the court.”).
court decision and reinstated Ortega’s guilty plea.
(Doc. 40-4, at 1-24; Doc. 40-6, at 2-16.)
23, 2013, the trial court issued an order stating that
Ortega’s sentence imposed on January 26, 2011 remained
in full force and effect.
Thereafter, no further
proceedings were filed in state court by Ortega until
December 2, 2013, when he filed in the trial court a
second PCRA petition in which he requested that he be
allowed to file with the Pennsylvania Supreme Court a
petition for allowance of appeal of the Superior Court’s
The Commonwealth did not oppose that
petition and Ortega filed a petition for allowance of
appeal which was then denied by the Supreme Court on
August 26, 2014. (Doc. 40-7, at 3-43; Doc. 40-8, at 2.)
There is a one-year statute of limitations for
§ 2254 petition for writ of habeas corpus.
See 28 U.S.C. § 2244(d)(1).
For our purposes, that
period starts to run from the date the conviction
becomes final, defined in section 2244(d)(1)(A) as “the
date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review.”
However, 28 U.S.C. §
2244(d)(2) also provides that “[t]he time during which a
properly filed application for State post-conviction or
other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward
any period of limitation[.]”
We will first address the
question of when Ortega’s conviction became final for
purposes of the commencement of the 1-year statute of
limitations and then address whether there is any other
time excluded under §2244(d)(2).
As stated above, Ortega was sentence on January
26, 2011, and he did not take a direct appeal after his
motion for reconsideration of sentence was denied on
March 18, 2011.
his conviction became
final on April 18, 2011. Ortega, however, filed a PCRA
petition on March 28, 2011, and the statute of
limitations tolled during the period that petition was
That petition was disposed of on December 1,
2012, when the Superior Court reinstated his guilty plea
and 1-year statute of limitations commenced to run when
the trial court issued the order of January 23, 2013,
stating that the Ortega’s sentence remained in full
force and effect. No proceedings were pending in state
court until December 2, 2013, when he filed a petition
for allowance of appeal with the Supreme Court, a period
of 313 days. Furthermore, an additional 176 days
accumulated between the time the Pennsylvania Supreme
Court denied Ortega’s petition for allowance of appeal
on August 26, 2014, and when he filed the present habeas
petition on February 18, 2015.3
The period of time
which elapsed far exceeds the 1-year period in which he
was required to file a petition for writ of habeas
corpus in this court.
An appropriate order will be entered.
SYLVIA H. RAMBO
United States District Judge
Dated: April 13, 2017
3. More importantly, a petitioner is not required to
appeal to the Pennsylvania State Supreme Court in order
to exhaust his or her claims for purposes of federal
habeas review. Lambert v. Blackwell, 387 F.3d 210, (3d
Cir. 2004). Consequently, the statute of limitations
commenced to run on January 23, 2013, and was not
tolled by the filing of the second PCRA petition.
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