BROWN v. MAHALLY et al

Filing 15

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; MR. BROWN'S OBJECTIONS ARE OVERRULED; MR. BROWN'S PETITION IS DISMISSED WITH PREJUDICE; THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY; THE CLERK OF COURT SHALL MARK THIS CASE CLOSED FOR ALL PURPOSES, INCLUDING STATISTICS.. SIGNED BY HONORABLE GENE E.K. PRATTER ON 4/22/15. 4/24/15 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL.(pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MELVIN BROWN,
Petitioner,
v.
LAWRENCE MAHALLY, et al.,
Respondents.

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ORDER

CIVIL ACTION

No. 14-5781

AND NOW, this 22nd day of April, 2015, having considered the Petition for Writ of
Habeas Corpus filed by Petitioner (Docket No. 1), Respondents’ Opposition (Docket No. 9),
Petitioner’s Reply (Docket No. 10), U.S. Magistrate Judge Marilyn Heffley’s Report &
Recommendations (Docket No. 11), Mr. Brown’s Objections thereto (Docket No. 13), and the
state court record, it is hereby ORDERED that:
1.

The Report & Recommendations are APPROVED and ADOPTED.

2.

Mr. Brown’s Objections are OVERRULED. 1

3.

Mr. Brown’s Petition is DISMISSED with prejudice.

4.

There is no probable cause to issue a certificate of appealability. 2

1

Mr. Brown reasserts in his objections that he is actually innocent of the crimes of which he was
convicted, and that therefore his habeas corpus petition should not be time-barred. However, as
Magistrate Judge Heffley observed, Mr. Brown presents no new evidence, let alone reliable new
evidence, of actual innocence. His argument that his deceased brother committed the crimes holds no
weight here; even if that “evidence” was reliable or even logically consistent with other facts asserted by
Mr. Brown, the “evidence” cannot be considered new – Mr. Brown admits that he presented these facts to
his attorney prior to trial and, indeed, that he was himself a witness to the crimes he now attributes to his
brother. Therefore, for the reasons outlined by Magistrate Judge Heffley in her Report and
Recommendations, Mr. Brown’s petition must be denied as untimely.
2
A certificate of appealability may issue only upon “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A 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); Lambert v. Blackwell, 387 F.3d 210, 230 (3d Cir. 2004). There is
no probable cause to issue a certificate in this action.
1

5.

The Clerk of Court shall mark this case CLOSED for all purposes, including
statistics.

BY THE COURT:

/s/ GENE E.K. PRATTER_
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE

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