United States District Court, E.D. Pennsylvania
June 17, 2004.
DAVID BROWN, Petitioner
THOMAS LAVAN, et al. Respondents.
The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge
MEMORANDUM AND ORDER
Petitioner David Brown ("Brown"), a prisoner at the State
Correctional Institution at Dallas, filed a timely petition for a
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Brown claims:
1) ineffective counsel; 2) arrest without probable cause; 3) lack
of a preliminary hearing.
The petition was referred to United States Magistrate Judge M.
Faith Angell ("Judge Angell"), who issued a Report and
Recommendation ("R&R") that the petition be denied and dismissed
without an evidentiary hearing, and that no certificate of
appealability be granted. (Paper No. 18). Judge Angell found
counsel was not ineffective, and ruled Brown's probable cause and
preliminary hearing claims were procedurally defaulted.
Brown filed timely objections to the R&R. After de novo
review of the claims and objections, the court finds counsel was
not ineffective, and Brown has not shown cause for the default. II. BACKGROUND
On May 13, 1987, Brown's accomplices (Michael Lee and Robert
Stone) invited Michael Lynch, a seventeen year-old New Mexico
resident, to Philadelphia. They claimed Lynch's father, Michael
Hollis, would be in the city. Hollis, a resident of Bermuda, was
an acquaintance of Lee and Stone.
Stone and Brown met Lynch at the airport and took him to
Brown's apartment. Lee phoned Hollis, and told him they would
kill and dismember his son if Hollis did not agree to smuggle
drugs from Jamaica to Bermuda.
Hollis reported the kidnapping to the Bermuda police, who
relayed the report to Philadelphia police. Acting on this
warning, the police went to Brown's apartment, released Lynch,
and arrested Brown and Lee. The police confiscated several
weapons, including: one loaded Uzi 9mm fully automatic rifle;
one.223 caliber magazine for an M16A1 rifle; one Styler 9mm
semiautomatic pistol; and one Beretta .22 caliber semi-automatic
The Commonwealth petitioned to file an information against
Brown without a preliminary hearing, under Pa. R. Crim. P. 231
(now Pa. R. Crim. P. 565). The Pennsylvania trial court granted
the petition, based on the high cost of transporting Hollis from
Bermuda and Lynch from New Mexico for both a preliminary hearing
and trial. Brown was convicted of kidnapping, criminal conspiracy, and
possessing prohibited offensive weapons, and sentenced to
consecutive terms of imprisonment totaling 11 to 25 years. The
Superior Court affirmed, Commonwealth v. Brown, 596 A.2d 249
(Pa. Super. 1991) (unpublished memorandum), and the
Pennsylvania Supreme Court denied Brown's request for
Brown filed a pro se petition under the Post Conviction
Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541, et seq.,
and new counsel was appointed. After evidentiary hearings, the
PCRA petition was dismissed. The Superior Court affirmed.
Commonwealth v. Brown, No. 2113 EDA 00, 785 A.2d 1024 (
Pa. Super. Ct. Aug. 24, 2001) (unpublished opinion). Brown did not
file a petition for allowance of appeal to the Supreme Court of
Brown, filing the instant Petition for Writ of Habeas Corpus,
alleged violations of his Constitutional rights:
1. Counsel was ineffective for failing to pursue Brown's claim
on the absence of a preliminary hearing;
2. There was a lack of probable cause for his arrest; and
3. Prosecutorial misconduct in denying him a preliminary
hearing violated his right to due process.
(Paper No. 1). III. DISCUSSION
A. Legal Standards
1. Habeas Corpus Standard
A federal habeas petitioner is entitled to relief when
independent federal review shows the state court arrived at a
conclusion opposite that reached by the Supreme Court on a
question of law, or on a set of materially indistinguishable
facts. Williams v. Taylor, 529 U.S. 362, 413 (2000). Such
relief is available only in cases in which a federal court
arrives at "a firm conviction that [the state court] judgment is
infected by constitutional error." Id. at 389. See also
Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d
Cir.) (en banc), cert. denied, 528 U.S. 824 (1999) ("[I]t is
not sufficient for the [habeas] petitioner to show merely that
his interpretation of [federal law] is more plausible . . .
rather, the petitioner must demonstrate that Supreme Court
precedent requires the contrary outcome.") (emphasis in
The "unreasonable application" clause precludes a federal court
from issuing a writ of habeas corpus unless the state court
decision is objectively unreasonable. Williams, 529 U.S. at
411. See also Matteo, 171 F.3d at 891 (holding habeas
petition should only be granted if "the state court decision,
evaluated objectively and on the merits, resulted in an outcome
that cannot reasonably be justified"). Under AEDPA, there is a presumption in favor of factual
conclusions by the state courts; this presumption will be
overcome only by clear and convincing evidence that the factual
conclusions are incorrect. See Stevens v. Delaware
Correctional Center, 295 F.3d 361, 368 (3d Cir. 2002).
2. Ineffective Counsel Standard
To establish that counsel was constitutionally ineffective,
Brown must show: 1) trial counsel's performance fell well below
an objective standard of effectiveness; and 2) there exists a
reasonable probability the result of the trial would have been
different, had he had effective counsel. Strickland v.
Washington, 466 U.S. 668, 687 (1984).
The standard of effectiveness is "whether counsel's conduct so
undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result."
Id. at 686. The reviewing court should be "highly deferential"
and must make "every effort . . . to eliminate the distorting
effects of hindsight . . ., and to evaluate the conduct from
counsel's perspective at the time." Id. at 689. The
Constitution does not guarantee defendants the best counsel,
only adequate counsel. Id. at 687. Counsel is permitted to
exercise discretion in making questionable claims. See Parrish
v. Fulcomer, 150 F.3d 326, 328 (3d Cir. 1999) (counsel not
ineffective for failing to raise a meritless claim). An error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal proceeding
if the error had no effect on the judgment. Strickland 466 U.S.
at 696. A different outcome must not be merely possible, but
probable. McNeil v. Cuyler, 782 F.2d 443, 451 (3d Cir. 1986).
If petitioner's arguments fail on either prong of the
Strickland test, the entire claim fails. "There is no reason
for a court deciding an ineffective assistance claim to . . .
address both components of the inquiry if the defendant makes an
insufficient showing on one." 466 U.S. at 697.
Pennsylvania has adopted a similar standard; counsel is
ineffective only if counsel's conduct: 1) had no "rational,
strategic or tactical basis"; and 2) "in the circumstances of the
particular case, so undermined the truth-determining process that
no reliable adjudication of guilt or innocence could have taken
place." 42 Pa. C.S.A. § 9543(a). The Court of Appeals has held
the Pennsylvania standard is not contrary to or an unreasonable
application of Strickland. See Werts v. Vaughn,
228 F.3d 178, 204 (3d Cir. 2000).
B. Brown's Objections
1. Ineffective Counsel Claim
Brown objects to Judge Angell's recommendation that counsel was not ineffective. He claims ineffectiveness of pretrial,
appellate, and post-verdict counsel for failing to preserve his
claims to a preliminary hearing. This claim was exhausted in
state court, and is reviewable by this court.
With regard to trial counsel, the state court properly allowed
an information instead of a preliminary hearing. The
Commonwealth, by demonstrating the high cost of bringing
witnesses from Bermuda and New Mexico, met the requirement for
good cause established under Pa. R. Crim. P. 565 (formerly Pa. R.
Crim. P. 231) and Commonwealth v. Ruza, 511 A.2d 808, 810 (
Pa. 1986) ("[Considering] the great expense of transporting the
victim from Florida for a preliminary hearing when the victim
would have to be brought back again for the trial . . ., good
cause existed for foregoing the preliminary hearing.").
Even if it had been error to bypass the hearing, it was
harmless error. Under both state and federal law, failure to hold
a preliminary hearing is harmless where the prosecution presents
enough evidence at trial to send the case to a jury. See
Commonwealth v. Hess, 414 A.2d 1043, 1048 (Pa. 1980) ("If in
fact it is determined at trial that the evidence of the
Commonwealth is sufficient to be submitted to the jury, then any
deficiency in the [preliminary hearing] would have been
harmless."). See also United States v. Voigt, 89 F.3d 1050,
1068 (3d Cir. 1996) ("[E]rror arising from the district court's
failure to hold an independent evidentiary hearing . . . is unquestionably harmless . . . [when] trial testimony . . .
provided the district court with a sufficient evidentiary
Here, the Commonwealth presented enough evidence to send the
case to the jury. Trial counsel was not ineffective for failing
to appeal pre-trial and post-verdict decisions that the case
could proceed on information without a preliminary hearing, as it
would have been a meritless appeal.
Brown also asserts his appellate counsel was ineffective for
failing to question trial counsel's performance. However,
appellate counsel is not obligated to raise a meritless claim.
See Parrish, 150 F.3d at 328. Brown has not shown trial or
appellate counsel fell below an objective standard of
Finally, Brown claims his PCRA counsel was ineffective for
failing to charge that trial and appellate counsel were
ineffective. "There is no constitutional right to an attorney in
state post-conviction proceedings. . . . Consequently, a
petitioner cannot claim constitutionally ineffective assistance
of counsel in such proceedings." Coleman v. Thompson,
501 U.S. 722, 752 (1991).
While there may be a state constitutional right to effective
PCRA counsel, federal habeas proceedings concern whether a
petitioner is "in custody in violation of the Constitution or
laws or treaties of the United States." 28 U.S.C. § 2254. As there is no Constitutional right to post-conviction counsel,
Brown's claim of PCRA counsel ineffectiveness is not cognizable
by this court.
Although Brown has already failed the first prong of
Strickland and further review is unnecessary, even if Brown
were able to show counsel was ineffective, there is no reasonable
probability of a different outcome at trial. 466 U.S. at 696. The
trial court properly bypassed the preliminary hearing. Even if
counsel had argued the point more strenuously, no other outcome
is reasonably probable.
Trial and appellate counsel were not ineffective, and the state
court rulings on counsel effectiveness was not contrary to or an
unreasonable application of federal law.
2. Probable Cause Claim
Brown objects to Judge Angell's recommendation that Brown's
probable cause claim was procedurally defaulted and he failed to
show cause and prejudice. Brown asserts cause for any default,
and claims appellate and PCRA counsel were ineffective for not
raising lack of probable cause.
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2244 et seq., requires Brown to exhaust
state court remedies before seeking relief in federal court.
28 U.S.C. § 2254. Brown must show all claims have been "fairly
presented" to the highest state court. See Picard v. Connor,
404 U.S. 270, 275 (1971); Swanger v. Zimmerman, 750 F.2d 291 (3d
Cir. 1984). "Both the legal theory and the facts underpinning the
federal claim must have been presented to the state courts . . .
and the same method of legal analysis must be available in the
state court as will be employed in federal court." Evans v.
Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992),
cert. dismissed, 506 U.S. 1089 (1993).
Brown failed to raise his probable cause claim on direct appeal
and on collateral review in the state PCRA system. Since he has
not fairly presented his legal and factual arguments to every
level of the state system, this claim is unexhausted. When a
claim has not been exhausted in state court and there are no
further state remedies available, the claim is procedurally
defaulted. See Wenger v. Frank, 266 F.3d 218, 223 (3d Cir.
2001), cert. denied, 535 U.S. 957 (2002). See also Coleman,
501 U.S. at 732. Because it is procedurally defaulted, this claim
is not reviewable by this court, unless there is cause and
Review of a procedurally defaulted claim is available when: 1)
the petitioner shows cause for the default; or 2) the petitioner
We require a prisoner to demonstrate cause for his
state-court default of any federal claim, and
prejudice therefrom, before the federal habeas court
will consider the merits of that claim. The one
exception . . . is the circumstance in which the
habeas petitioner can demonstrate a sufficient
probability that our failure to review his federal
claim will result in a fundamental miscarriage of justice. (Citing
Coleman, 501 U.S. at 750) (emphasis in original)
Edwards v. Carpenter, 529 U.S. 446, 451 (2000). The
"fundamental miscarriage of justice" exception refers to a
"conviction of one who is actually innocent of the underlying
offense." Dretke v. Haley, 124 S.Ct. 1847
, 1852 (May 3, 2004).
A petitioner can show cause for default in certain limited
instances of ineffective counsel, Edwards, 529 U.S. at 452, if
the claim of ineffectiveness itself was raised in state court.
Murray v. Carrier, 477 U.S. 478, 489 (1986). It was not, and
Brown cannot show cause for his default. Brown's probable cause
claim remains procedurally defaulted.
As Brown does not assert his innocence of the underlying crime,
inquiry into "fundamental miscarriage of justice" is unnecessary.
3. Denial of Preliminary Hearing Claim
Brown objects to Judge Angell's recommendation there was
procedural default on his claim of prosecutorial misconduct for
bypassing the preliminary hearing.
When an issue is properly asserted in the state system, it can
still be procedurally defaulted if it is dismissed because of an
adequate and independent state procedural rule. See Coleman,
501 U.S. at 750, Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir.
1996), McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).
The Superior Court ruled Brown's preliminary hearing claim did not meet PCRA threshold for review under 42 Pa. Cons. Stat. Ann.
§ 9543(a)*fn1 and § 9544(a)*fn2 (West, 1991), because
the claim was previously litigated in pre-trial motions and in
post-verdict motions. The claim was not appealed post-trial, and
Brown failed to charge in his PCRA petition that his counsel had
no rational basis for not raising his claim of prosecutorial
misconduct for not holding a preliminary hearing.*fn3 This
is an adequate and independent state ground for dismissal, and so
there was procedural default.
Brown claims he had cause for this default, citing ineffectiveness of counsel. However, Brown's PCRA counsel
ineffectiveness claim is not cognizable by this court as an
independent ground for federal relief. Coleman. Thus, it cannot
serve to justify procedural default by the defendant. Edwards.
Brown has not shown cause and prejudice for his procedural
default so further consideration of his claim of prosecutorial
misconduct in bypassing the preliminary hearing is barred.
Petitioner Kenneth Brown's objections to the Report and
Recommendation are overruled. An appropriate order follows. ORDER
AND NOW, this ____ day of June, 2004, upon consideration of
petitioner's Petition for Writ of Habeas Corpus by a Person in
State Custody pursuant to 28 U.S.C. § 2254 (Paper No. 1), United
States Magistrate Judge M. Faith Angell's Report and
Recommendation (Paper No. 12), Petitioner's Objections to
Magistrate Judge's Report and Recommendation (Paper No. 15), for
the reasons stated in the foregoing Memorandum, it is hereby
1. The Report and Recommendation (Paper No. 18) is APPROVED
2. Petitioner's Objections to Magistrate Judge's Report and
Recommendation (Paper No. 23) are OVERRULED;
3. Petitioner's Petition for Writ of Habeas Corpus by a person
in State Custody (Paper No. 1) is DENIED;
4. There is no probable cause to issue a certificate of
5. The Clerk of the Court shall mark this case closed.