BROWN v. GARMAN et al

Filing 22

ORDER THAT THE HE CLERK OF COURT IS DIRECTED TO REMOVE THIS ACTION FROM CIVIL SUSPENSE AND RETURN IT TO THE COURT'S ACTIVE DOCKET. THE PETITIONER'S OBJECTIONS TO THE REPORT AND RECOMMENDATION (DOC. NO. 21) ARE OVERRULED. THE HO NORABLE ELIZABETH HEY'S REPORT AND RECOMMENDATION (DOC. NO. 16) IS APPROVED AND ADOPTED. THE PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS (DOC. NO. 1) IS DENIED, ETC. THE CLERK OF COURT SHALL MARK THIS CASE AS CLOSED. SIGNED BY HONORABLE EDWARD G. SMITH ON 11/28/17. 11/28/17 ENTERED AND COPIES MAILED TO PETITIONER, E-MAILED. (er, ) Modified on 11/28/2017 (er, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANDREW BROWN,
Petitioner,
v.
SUPERINTENDENT MARK GARMAN,
THE DISTRICT ATTORNEY OF THE
COUNTY OF DELAWARE, and THE
ATTORNEY GENERAL OF THE STATE
OF PENNSYLVANIA,
Respondents.

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CIVIL ACTION NO. 16-872

ORDER
AND NOW, this 28th day of November, 2017, after considering the petition for writ of
habeas corpus filed by the pro se petitioner, Andrew Brown (Doc. No. 1), the respondents’
response thereto (Doc. No. 6), the state-court record, United States Magistrate Judge Elizabeth T.
Hey’s report and recommendation (Doc. No. 16), and the petitioner’s timely objections to the
report and recommendation (Doc. No. 21); 1 accordingly, it is hereby ORDERED as follows:
1.

The clerk of court is DIRECTED to remove this action from civil suspense and

RETURN it to the court’s active docket;
2.

The petitioner’s objections to the report and recommendation (Doc. No. 21) are

OVERRULED; 2
3.

The Honorable Elizabeth Hey’s report and recommendation (Doc. No. 16) is

APPROVED and ADOPTED;
4.

The petitioner’s petition for writ of habeas corpus (Doc. No. 1) is DENIED;

5.

The petitioner has not made a substantial showing of the denial of a constitutional

right and is therefore not entitled to a certificate of appealability, 28 U.S.C. § 2253(c)(2); and

6.

The clerk of court shall mark this case as CLOSED.
BY THE COURT:

/s/ Edward G. Smith
EDWARD G. SMITH, J.
1

Brown submitted a certificate of service indicating that he served the respondents with the objections on October
11, 2017. See Doc. No. 21 at ECF p. 22. Although this certificate of service does not inform the court as to when he
provided the objections to prison officials for mailing to the clerk of court, the court has used this date as the filing
date pursuant to the prisoner mailbox rule. See Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (explaining that
“a pro se prisoner’s . . . petition is deemed filed at the moment he delivers it to prison officials for mailing”). The
court also notes that the envelope containing the objections has a postmark of October 12, 2017.
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The court conducts a de novo review and determination of the portions of the report and recommendation by the
magistrate judge to which there are objections. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de
novo determination of those portions of the report or specified proposed findings or recommendations to which
objection is made.”); see also E.D. Pa. Loc. R. Civ. P. 72.1(IV)(b) (providing requirements for filing objections to
magistrate judge’s proposed findings, recommendations or report).
Brown raises thirteen objections: three objections to Magistrate Judge Hey’s conclusion that four of his
claims are procedurally defaulted; seven objections to Judge Hey’s rejection of his ineffective assistance of counsel
claim; and three objections to Judge Hey’s conclusion that he was not constructively denied the assistance of
counsel. See Pet.’s Written Objs. to the R. & R. of the Magistrate (“Objs.”), Doc. No. 21. The court will consider
each objection in turn.
For his first objection to Judge Hey’s finding of procedural default, Brown argues that because no state
court held that his claims were procedurally defaulted, Judge Hey should not have found procedural default. See
Objs. at 2-3. To support his argument Brown cites Harris v. Reed, 489 U.S. 255 (1989). See Objs. at 2. In Harris,
the Supreme Court held that “a procedural default does not bar consideration of a federal claim on either direct or
habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its
judgment rests on a state procedural bar.” 489 U.S. at 263 (internal quotation marks omitted). Brown’s
interpretation of Harris is correct, but his application is not.
Judge Hey found four of Brown’s claims were procedurally defaulted because Brown failed to exhaust
those claims at the state level. See R. & R. at 14, Doc. No. 16. 28 U.S.C. § 2254 requires a habeas petitioner
seeking relief from a state court conviction to exhaust all available remedies at the state level before he or she can
bring a habeas petition in federal court. In his PCRA appeal, Brown did not present four of his claims to the
Superior Court of Pennsylvania. Under section 2254, review by the Superior Court is a remedy that Brown has not
exhausted for these four claims. Consequently, Brown cannot bring these four claims in federal court until the
Superior Court has heard them.
Here, however, Brown can no longer present these claims to the Superior Court in a PCRA appeal because
the time to do so has expired. See R. & R. at 11; see also Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012)
(“Procedural default occurs when a claim has not been fairly presented to the state courts (i.e., is unexhausted) and
there are no additional state remedies available to pursue . . . .”). Consequently, Judge Hey was correct in
concluding that these four claims are now procedurally defaulted.
For his second procedural default objection, Brown argues that “the R&R ignores the fact that the Superior
Court failed to abide by its own rules and procedures.” Objs. at 3. Specifically, Brown argues that “Turner/Finley
counsel must review the case zealously. . . . [And counsel must also] list the issues petitioner wants to have
reviewed.” Id. (internal citation omitted) (alterations to original). Brown contends that he wanted all eleven of his
initial PCRA claims presented to the Superior Court on PCRA appeal. See id. at 3-4. Brown contends that
counsel’s failure to abide by the Turner/Finley requirements should excuse his default. See id. at 4. In other words,
Brown contends that the court should excuse his procedural default because his appellate counsel was ineffective.
Generally, “attorney error during state collateral proceedings does not constitute cause to excuse the
procedural default of a claim later raised in habeas.” Norris v. Brooks, 794 F.3d 401, 404 (3d. Cir. 2015) (citing

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Coleman v. Thompson, 501 U.S. 722 (1991)). There is a narrow exception to this rule. In Martinez v. Ryan, 566
U.S. 1 (2012), the Supreme Court held that ineffective assistance of counsel “in an initial-review collateral
proceeding . . . will not bar a federal habeas court from hearing a substantial claim of ineffective assistance of
counsel.” Id. at 18. Even were we to take Brown’s factual assertion—that he wanted his trial counsel to raise all
eleven claims—as true, that would still be insufficient to trigger the Martinez exception. Martinez is limited to
claims of ineffective assistance of counsel in the initial collateral review proceeding. See Norris, 794 F.3d at 404
(denying petitioner’s ineffective assistance of counsel claim where the claim was “presented on initial collateral
review and [] waived on collateral appeal . . . .” (alterations to original)).
Here, Brown is claiming that appellate counsel failed to raise four of his claims on PCRA appeal. Brown
does not dispute that these claims were presented to the PCRA court as part of the initial proceeding. Consequently,
the court agrees with Judge Hey that the Martinez exception does not apply.
Brown’s third procedural default objection fails for a similar reason. He suggests that he has an
“enforceable right to effective post-conviction counsel,” and that his counsel was ineffective during both the initial
PCRA review and the PCRA appeal. Objs. at 4 (internal quotation marks and citation omitted). He suggests that
Judge Hey did not adequately consider trial counsel’s performance in the initial proceeding. See Objs. at 4-5.
Brown overlooks the fact that trial counsel’s performance in the initial proceeding is relevant to the issue at hand
only to the extent that trial counsel may have failed to raise the four procedurally defaulted claims.
In other words, Brown can only succeed under Martinez if he can show that trial counsel failed to raise
these four claims in the initial PCRA review proceeding. But those four claims were raised in the initial PCRA
review proceeding, and Brown does not contest that fact. Consequently, Brown’s third procedural default objection
is without merit.
Next, Brown raises seven objections to Judge Hey’s denial of his ineffective assistance of counsel (“IAC”)
claim. Objs. at 5-18. To succeed on an ineffective assistance of counsel claim, a petitioner must show (1) that
counsel’s performance fell below an objective standard of reasonableness and (2) that he or she was prejudiced by
counsel’s unreasonable performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish
prejudice, a petitioner needs to show that “‘there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,’ with ‘a reasonable probability’ meaning ‘a
probability sufficient to undermine confidence in the outcome.’” Mathias v. Frackville SCI, 869 F.3d 175, 189 (3d
Cir. 2017) (quoting Strickland, 466 U.S. at 694). Additionally, a petitioner presenting a section 2254 claim for IAC,
must not only show that both prongs of Strickland are satisfied, he or she must also show that the state court’s
conclusion that there was no IAC was “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States;” or that the state court’s conclusion was
based on factual findings that were “unreasonable . . . in light of the evidence presented in the state court
proceeding.” 28 U.S.C. § 2254(d)(1), (2) (alterations to original).
For his first IAC objection, Brown argues that the case should be remanded to Judge Hey for an evidentiary
hearing. See Objs. at 5. Brown contends that under Massaro v. United States, 538 U.S. 500 (2003), he is entitled to
an evidentiary hearing. See Objs. at 5-6. Brown’s reliance on Massaro is misplaced. Massaro addressed the issue
of how to develop a factual record in a section 2255 claim, whereas here, Brown is bringing a section 2254 claim.
Section 2255 claims are collateral appeals of federal court convictions. See 28 U.S.C. § 2255.
Consequently, there is no state court review before a federal court hears the habeas petition. In other words, the
federal district court is the first collateral review court. Because of this, a petitioner will not have had a chance to
develop a fact record before his or her case is heard in federal court. Section 2255 recognizes this reality and
consequently sets forth a generous standard for when federal courts should hold an evidentiary hearing in section
2255 cases. See 28 U.S.C. § 2255(b) (2012) (“Unless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing . . . .” (alterations to
original)).
On the other hand, section 2254 claims are collateral appeals of state court convictions. Consequently, in
section 2254 cases the petitioner will have already had an adequate opportunity to create a fact record by the time
his or her case is heard in federal court. Section 2254 recognizes this reality and sets a strict standard for when
courts should grant an evidentiary hearing in Section 2254 cases. See 28 U.S.C. § 2254 (2012). Specifically, a
district court shall only hold an evidentiary hearing if the petitioner first shows that the claim “relies on a new rule of
constitutional law . . . . or a factual predicate that could not have been previously discovered through the exercise of
due diligence.” Id.
Here, Brown is appealing his state court conviction. As a result, he brings these claims under section 2254.
Brown has not alleged the existence of a “new rule of constitutional law” or “a factual predicate that could not have

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been previously discovered through the exercise of due diligence.” Consequently, Brown has not met the strict
standard set forth in section 2254 and is not entitled to an evidentiary hearing.
For his second IAC objection, Brown contends that Judge Hey was incorrect in rejecting his contention that
his trial counsel was ineffective “for failing to move to have Brown’s [confession] suppressed.” Objs. at 6.
Specifically, Brown contends that “he was scared, tired and confused” during the interrogation by Officer Nuttall,
and that, as a result of this, his testimony was coerced and involuntary. Objs. at 6-7 (internal quotation marks
omitted). On this point, Judge Hey determined, and this court agrees, that under the totality of the circumstances,
the state courts’ conclusion that Brown’s confession was voluntary was a “reasonable determination of the facts and
consistent with governing law.” R. & R. at 17. Even if this court were to find evidence in the record to fully
support Brown’s contention that he was “scared, tired, and confused” during the interrogation, this would be
insufficient for us to conclude that the state courts’ determination was unreasonable.
Brown also argues that Judge Hey does not address “the fact that Brown’s alleged confession was not tape
recorded and the inconsistent testimony regarding why it was not.” Objs. at 8. Judge Hey did not address this issue,
and she did not need to. “[T]he fact that Brown’s alleged confession was not tape recorded and the inconsistent
testimony regarding why it was not,” has no bearing on whether Brown’s confession was coerced.
Brown’s other arguments in this objection have already been adequately addressed by Judge Hey’s report
and recommendation. The court agrees with Judge Hey’s conclusion that the state courts’ application of these facts
to the IAC standard was not unreasonable.
For his third IAC objection, Brown contends that trial counsel was “ineffective for failing to file a motion
to request the disclosure of the statements [provided by confidential informants], and identity of confidential
informants.” Objs. at 8 (alterations to original). He also contends that he should have been given a hearing on this
claim. See Objs. at 9. Brown’s arguments in favor of a hearing fail for the reasons noted above (i.e., he has not
established that he is entitled to a hearing under section 2254). Brown’s other arguments in this objection have
already been adequately addressed by Judge Hey’s report and recommendation.
For his fourth IAC objection, Brown claims that Judge Hey erred by rejecting his claim that trial counsel
was ineffective for failing to object to prosecutorial misconduct. See Objs. at 11. Brown does not raise any
arguments here that have not already been thoroughly addressed by Judge Hey’s report and recommendation.
For his fifth IAC objection, Brown argues that Judge Hey erred by rejecting his claim that trial counsel was
ineffective for failing to seek to have Detective Nuttall (“Nuttall”) sequestered. See Objs. at 15. Pennsylvania Rule
of Evidence 615 provides that “[a]t a party’s request the court must order witnesses excluded so that they cannot
learn of other witnesses’ testimony.” Pa. R. Evid. 615. However, Rule 615, which, as Judge Hey noted, is
consistent with Federal Rule of Evidence 615, “does not authorize sequestering . . . an officer or employee of a party
that is not a natural person, after being designated as the party’s representative by its attorney.” Pa. R. Evid. 615(b).
Brown contends that Nuttall was not designated as the Commonwealth’s representative. See Objs. at 16. He
contends that because Nuttall was not designated as the Commonwealth’s representative, the exclusion in Rule
615(b) should not apply. See Objs. at 16. Assuming arguendo, that Brown is correct, and that Nuttall was never
designated as the Commonwealth’s representative, Brown’s objection still fails. For the reasons outlined in Judge
Hey’s report and recommendation, Brown has not shown prejudice. See R. & R. at 31. Therefore, he does not
succeed on the second prong of Strickland, and his claim fails.
For his sixth IAC objection, Brown argues Judge Hey erred by rejecting his claim that trial counsel was
ineffective for failing to object to unethical prosecutorial misconduct. See Objs. at 16. Brown does not raise any
arguments in his objections that have not already been appropriately addressed by Judge Hey.
For his seventh IAC objection, Brown argues Judge Hey erred by rejecting his claim that “trial counsel was
ineffective for failing to request a jury instruction on a lesser-included offense of voluntary manslaughter.” Objs. at
17. Again, Brown does not raise any arguments here that have not already been addressed by Judge Hey.
Finally, Brown raises three objections to Judge Hey’s rejection of his constructive denial of counsel claim.
See Objs. at 18-19. First, Brown says that Judge Hey failed to address whether the colloquy was sufficient to ensure
that his waiver of any conflict of interest trial counsel may have had was knowing and voluntary. See Objs. at 19.
This assertion is inaccurate and, regardless, Judge Hey addressed this in the report and recommendation. See R. &
R. at 35 (“Although Brown now claims this waiver was not knowingly and voluntarily made, there is no indication
that there was an actual conflict of interest.”). However, even if Judge Hey had failed to address the adequacy of the
colloquy, Brown’s objection would still fail, because, as Judge Hey noted, there is nothing in the record to indicate
that there was an actual conflict of interest. See id.
Brown’s second and third denial of counsel objections do not raise any arguments that have not already
been addressed by Judge Hey’s report and recommendation.

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