The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge
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 Super. 1991) (unpublished memorandum), and the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.