SPRENG v. THOMPSON et al

Filing 20

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 2/9/17. 2/9/17 ENTERED AND COPIES EMAILED TO COUNSEL AND COPY TO LEGAL.(jaa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PAUL SPRENG,
Petitioner
vs.
SUPT. BRIAN THOMPSON, et al.,
Respondents

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CIVIL ACTION

NO. 13-2904

MEMORANDUM
STENGEL, J.

February 8, 2017

Petitioner Paul Spreng brings this counseled petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, alleging that the Pennsylvania appellate courts denied him
procedural and substantive due process and access to those courts. Upon referral, the
Honorable Marilyn Heffley, United States Magistrate Judge, issued a Report and
Recommendation, recommending that the petition be denied. Mr. Spreng filed
Objections to the Report and Recommendation. For the following reasons, I will
overrule the Objections, approve and adopt the Report and Recommendation, and deny
the petition with prejudice.
I. BACKGROUND 1
In its decision affirming the conviction and judgment of sentence, the Superior
Court of Pennsylvania provided the following facts as summarized by the trial court:
On April 13, 2004, at approximately 7:50 p.m., Officer
Sarris and his partner, Officer Elliot, observed [Mr.
Spreng] exit his residence and drive off in a Ford Escape
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The facts and procedural history are taken from the relevant decisions of the Court of Common
Pleas of Philadelphia County and the Superior Court of Pennsylvania.

vehicle. Wearing plain-clothes and driving an unmarked
vehicle, the officers followed [Mr. Spreng] to a
warehouse located at 2847 North C Street, in the City
and County of Philadelphia. The warehouse “had a
large steel roll-up gate” and a “walk-through door”
located “just to the north of . . . gate.” Attached to the
south wall of the warehouse – at 2945 North C Street –
was a house.
When Kane pulled in front of the warehouse, its outer
gate “opened up by itself” and he parked inside next to a
White Plymouth Voyager. After the outer gate closed
again, Officers Sarris and Elliot joined fellow officers in
“setting up a perimeter” around the premises.
At approximately 9:00 p.m., the White Plymouth
Voyager “backed out” of the warehouse and left in a
southbound direction. Officers Sarris and Elliot
followed, and pulled alongside the Voyager to obtain a
closer look at the driver, who later was identified as [Mr.
Spreng]. While Officers Sarris and Elliot subsequently
returned to the warehouse, other officers followed [Mr.
Spreng] to a residence located at 419 South 43rd Street,
in the City and County of Philadelphia, Pennsylvania.
On May 4, 2004, several members of Officer Sarris’ unit
again conducted surveillance at 2847 North C Street.
This time, they observed [Mr. Spreng] exit the
warehouse in his Plymouth Voyager and followed him
to a store named “Garden Indoors,” which is located in
Bucks County, Pennsylvania. One plain-clothes officer
followed [Mr. Spreng} inside the store while others,
including Officer Sarris, watched from their vehicles.
Another officer videotaped [Mr. Spreng] and recorded
him and store employees loading several large white
boxes into the back of his Voyager, after which he
returned to the warehouse on 2847 North C Street.
Early the next morning, while it was still dark, Officer
Sarris collected some “trash” that “was left at the
curbside in front of [413 South 43rd Street].” Having
previously learned from the Bureau of Motor Vehicles
that [Mr. Spreng] owned this property, the officer
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retrieved the following items from his curbside trash:
(1) a letter from Plummer Realtors addressed to [Mr.
Spreng] at 413 South 431 Street; (2) a letter from
Plummer Realtors addressed to [Mr. Spreng] at 419
South 43rd Street; and (3) a letter addressed to Defendant
Ruh at 413 South 43rd Street.
See Commonwealth v. Spreng, 2990 EDA 2009, *2-3 (Pa. Super. September 13, 2011).
The Superior Court further noted that the investigation prompted the issuance of
five search warrants for five properties which were executed on May 11, 2004. Id. at *4.
From each of these properties, the police confiscated sizeable amounts of marijuana,
various forms of drug paraphernalia, and other drug-related materials. Significantly, the
police also found sophisticated growing equipment and substantial stockpiles of live
marijuana plants. Id. Mr. Spreng and his two co-defendants were subsequently arrested
and charged with numerous drug-related offenses. After unsuccessfully moving to
suppress the physical evidence, 2 all three defendants proceeded to a joint trial which
began on May 19, 2009.
The trial court provided the following procedural background upon appeal in
accordance with the requirements of Pennsylvania Rule of Appellate Procedure 1925:
On June 2, 2009, a jury found [Mr. Spreng] guilty on
charges of possessing/manufacturing marijuana with the
intent to manufacture and/or deliver, Criminal
Conspiracy, and possessing drug paraphernalia. On
August 21, 2009, this Court sentenced him to five to ten
years’ incarceration for possessing/manufacturing
marijuana with the intent to deliver, and two and one-half
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I note that the trial court granted a motion to suppress some of the evidence based upon a
violation of the “knock and announce” rule. The Commonwealth appealed, and the Superior
Court reversed and remanded the case for trial. See Commonwealth v. Kane, 940 A.2d 483 (Pa.
Super. 2007).

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to five years’ incarceration on the charge of Criminal
Conspiracy. These sentences are to run concurrently, and
no further sentence was imposed on the charge of
possessing drug paraphernalia.
[Mr. Spreng] filed post-sentence motions, which this
Court denied on September 16, 2009. [Mr. Spreng] then
filed a timely Notice of Appeal on October 9, 2009,
following which this Court ordered him to file a Concise
Statement of Matters Complained of on Appeal pursuant
to Pa.R.C.P. 1925(b). Counsel for [Mr. Spreng] timely
complied.
Commonwealth v. Spreng, Trial Court Opinion, November 5, 2010 at 3-5 (footnotes
omitted).
II. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective
Death Penalty Act of 1996, a petition for habeas corpus may be granted only if (1) the
state court’s adjudication of the claim “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States;” or (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.” See 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)).
Where a petition for writ of habeas corpus has been referred to a magistrate judge
for a report and recommendation, the district court “shall make a de novo determination
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of those portions of the report or specified proposed findings or recommendations to
which objection is made . . . . [T]he court may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” See 28 U.S.C. §
636(b)(1).
III. DISCUSSION
Mr. Spreng objects to Judge Heffley’s determination that he is attempting to relitigate the suppression issues in a federal habeas setting. He insists that his petition was
not brought under the Fourth Amendment. He argues, instead, that the Pennsylvania
appellate courts denied him procedural and substantive due process and access to the
courts. I must disagree.
A careful review of the petition and Mr. Spreng’s Objections indicates that Mr.
Spreng is dissatisfied with the Superior Court’s decision on appeal. He argues that “the
Superior Court panel erred in not utilizing the proper standard of review denying
substantive and procedural due process and meaningful access to courts.” See Objections
at 9. Although characterized as rooted in due process, Mr. Spreng’s claim is in essence
asking me to review the correctness of the Superior Court of Pennsylvania’s analysis of
his suppression claim. He has argued extensively throughout these habeas proceedings
that the affidavit of probable cause did not satisfy the standard for probable cause,
making his due process claim indistinguishable from the underlying challenge of the
search warrants issued in his criminal case.
Pursuant to Stone v. Powell, 428 U.S. 465, 494, 96 S. Ct. 3037, 49 L. Ed. 2d 1067
(1976), a federal habeas court cannot review a Fourth Amendment claim if the petitioner
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had a full and fair opportunity to litigate the claim in the state courts. Id.; see also Wright
v. West, 505 U.S. 277, 293, 112 S. Ct. 2482, 120 L. Ed. 2d 225 (1992). A petitioner is
considered to have had a full and fair opportunity to litigate such claims if the state has an
available mechanism for suppressing evidence seized in or tainted by an illegal search or
seizure, irrespective of whether the petitioner actually availed himself of that mechanism.
See U.S. ex rel. Hickey v. Jeffes, 571 F.2d 762, 766 (3d Cir. 1978); Boyd v. Mintz, 631
F.2d 247, 250 (3d Cir. 1980). Conversely, a petitioner has not had a full and fair
opportunity to litigate a Fourth Amendment claim, and therefore, avoids the Stone bar, if
the state system contains a structural defect that prevented the state court from fully and
fairly hearing that Fourth Amendment argument. See Marshall v. Hendricks, 307 F.3d
36, 82 (3d Cir. 2002). Significantly, erroneous or summary resolution by a state court of
a Fourth Amendment claim does not overcome the [Stone] bar.” Id.
Mr. Spreng cannot show that the state courts failed to provide a corrective
mechanism, or that they precluded him from using it. Indeed, the court held a two-day
hearing on the motion to suppress where it heard testimony on the issues raised, and even
excised portions of the affidavit of probable cause. Then, the Superior Court reviewed
the sufficiency of the affidavit of probable cause on direct appeal and concluded that the
issuance of the search warrants was justified. Mr. Spreng raised this issue again in his
petition for a rehearing en banc, and even presented the claim to the Supreme Court of
Pennsylvania in a petition for allowance of appeal. He was afforded ample opportunity
to litigate this Fourth Amendment claim in state court. There was no structural error in
the state system or an unconscionable breakdown in that system. Boyd v. Mintz, 631
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F.2d 247, 250 (3d Cir. 1980). Whether the Superior Court adhered to its own precedents
is not a question for this court to decide, but for the Supreme Court of Pennsylvania,
which denied Mr. Spreng’s petition for allowance of appeal of the Superior Court’s
decision. See Commonwealth v. Spreng, 47 A.3d 847 (Pa. 2012). Accordingly, I will
overrule Mr. Spreng’s Objections, approve and adopt Judge Heffley’s well-reasoned
Report and Recommendation, and deny Mr. Spreng’s petition for writ of habeas corpus
with prejudice.
Finally, Judge Heffley recommended that I decline to issue a certificate of
appealability. Under the Antiterrorism and Effective Death Penalty Act, a certificate of
appealability may not issue unless “the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c). The showing required to satisfy §
2253(c) is straightforward: the petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong. Slack
v. McDaniel, 529 U.S. 473, 484 (2000). No reasonable jurist would make such a finding
in this case. Accordingly, I will decline to issue a certificate of appealability.
An appropriate Order follows.

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