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BROWN v. LAVAN

June 17, 2004.

DAVID BROWN, Petitioner
v.
THOMAS LAVAN, et al. Respondents.



The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge

MEMORANDUM AND ORDER

I. INTRODUCTION

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 pistol.

  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 allocatur.

  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 Pennsylvania.

  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. ...


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