Brown v. Garman

ANDREW BROWN, Petitioner, v. SUPERINTENDENT MARK GARMAN, THE DISTRICT ATTORNEY OF THECOUNTY OF DELAWARE, and THE ATTORNEY GENERAL OF THE STATEOF PENNSYLVANIA, Respondents.

CIVIL ACTION NO. 16-872

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

November 28, 2017

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

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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.

2. 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 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...