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Gene Leonard Brown v. Melvin Lockett; and Tom Corbett

October 23, 2012

GENE LEONARD BROWN, PETITIONER,
v.
MELVIN LOCKETT; AND TOM CORBETT, RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

MEMORANDUM OPINION

Gene Leonard Brown ("Petitioner"), represented by privately retained counsel, has filed a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (the "Petition"). In June 2001, a jury in the Allegheny County Court of Common Pleas found Petitioner guilty of first degree murder in the shooting death of an acquaintance of Petitioner by the name of Darryl Massie.*fn1

Petitioner is currently serving a sentence of life imprisonment without the possibility of parole.

Despite seeking leave to file an Amended Petition, ECF No. 16, even with leave granted, the three claims raised in the initial Petition and brief in support, are the ones that Petitioner, in the final analysis, relies upon. The first two issues are:

5.1 Mr. Brown was denied his Sixth Amendment right to effective assistance of counsel at trial because trial counsel failed to present medical records, police reports, and witness testimony regarding the prior incident where the victim, Mr. Massie, attempted to rob Mr. Brown at gunpoint and then injured Mr. Brown during the struggle for the gun, which Mr. Brown successfully wrestled away from Mr. Massie and gave to the police.

5.2 Mr. Brown was denied his Sixth Amendment right to effective assistance of counsel at trial because trial counsel failed to call character witnesses, the names of whom were provided to trial counsel prior to trial.

ECF No. 1 at 7 to 8. Because the state courts addressed these claims on the merits and because we do not find that Petitioner carried his burden to show that that state courts' disposition of these claims was either contrary to or an unreasonable application of then existing United States Supreme Court precedent nor constituted an unreasonable determination of the facts, we will deny the Petition.

Petitioner also raises a third ground for relief in the Memorandum in Support of the Petition for Writ of Habeas Corpus. He argues that even if the individual errors of trial counsel are found to have not prejudiced Petitioner then the cumulative errors of trial counsel prejudiced Petitioner within the meaning of Strickland. ECF No. 2 at 71 to 80. This issue was not presented to the state courts and so the state courts did not address it. Nevertheless, because the state courts found that there were no errors by counsel, then no errors could be aggregated in order to create cumulative prejudice. Accordingly, the Petition will be denied on this ground as well.

I. PROCEDURAL AND FACTUAL HISTORY*fn2

Following a July 31, 2000 shooting incident at the St. Clair Village housing project in the City of Pittsburgh, Petitioner was identified as the shooter in a photographic array by at least one of the witnesses.*fn3 Petitioner was arrested on September 24, 2000 and charged with criminal homicide in the death of Mr. Massie.

A jury trial was conducted from June 4, 2001 to June 7, 2001, before the Honorable Donna Jo McDaniel. Petitioner was represented by Sidney Sokolsky, Esquire, who was privately retained. At the trial, Petitioner took the stand in his own defense, admitted to shooting at the victim, but only at his legs and according to Petitioner, the shots either did not strike the victim or could only have struck the victim in the legs, TT at 358 to 364, whereas the fatal shots were two shots to the chest area of the victim. The victim did not have any gunshot wounds to the legs.

More specifically, Petitioner testified that he was walking to his sister's house to go to a party for their mother. While doing so, he noticed a group of men sitting down. TT at 357. He recognized one of these men to be Mr. Massie, the man, who about ten days earlier was armed with a gun and attempted to rob Petitioner. According to Petitioner, Mr. Massie got up and began walking toward Petitioner. Id., at 357-58. Mr. Massie confronted Mr. Brown, and threatened: "What are you going to do now? Where is the police at now, you little bitch." As Mr. Massie was saying this, Petitioner testified that he saw Mr. Massie reach inside his clothes in his mid-section area under his shirt as if he were going to retrieve a gun. Id. According to Petitioner, he then got his own gun and shot at Mr. Massie, aiming at or near Mr. Massie's legs. At this point, gun shots were fired in the direction of Petitioner and Mr. Massie. Petitioner saw Phil Peterson across the street shooting a gun in Petitioner's direction. Id. Mr. Peterson testified that he was shooting in order to scare Petitioner away. TT at 64. Petitioner testified that he then dropped his gun, put his hands on his head to signal that he no longer had a gun, hoping that the gunfire would stop. TT 361, 382. But the gunfire continued and Petitioner ran away and while doing so, he saw his cousin driving and shouted to his cousin to stop, got in the car and told his cousin what just occurred. TT at 362-63.

On June 7, 2001, a jury convicted Petitioner of murder in the first degree - apparently not crediting Petitioner's version of the events and his claimed self-defense. On June 20, 2001, the Court sentenced Mr. Brown to a mandatory term of life imprisonment, without the possibility of parole.

On June 21, 2001, the trial court appointed the Office of the Public Defender to represent Mr. Brown in his direct appeal. On March 1, 2003, the Pennsylvania Superior Court affirmed the judgment of sentence. On May 30, 2003, the Superior Court denied Mr. Brown's Application for Reargument. On February 17, 2004, the Supreme Court of Pennsylvania denied the Petition for Allowance of Appeal.

On July 8, 2004, Mr. Brown filed a pro se Petition under the Post Conviction Relief Act ("PCRA"). On September 14, 2004, the PCRA court, the Honorable Donna Jo McDaniel appointed Richard Narvin, Esquire, of the Office of Conflict Counsel of Allegheny County to represent Mr. Brown in his PCRA Petition.

Almost two years later, on August 31, 2006, after several extensions of time were granted, PCRA counsel filed an amended petition. On December 27, 2006, the Commonwealth filed its answer to the petition for PCRA relief. On January 9, 2007, the PCRA court entered on the record a Notice of Intent to Dismiss the amended PCRA petition. On April 4, 2007, the PCRA court conducted a hearing on Mr. Brown's claims of ineffectiveness of trial counsel, Sidney Sokolsky, Esquire. At the conclusion of the PCRA hearing, the court stated that it was going to deny the amended PCRA petition. See N.T. PCRA Hearing, 4/4/2007, at 47.

On February 14, 2008, the Disciplinary Board of the Supreme Court of Pennsylvania wrote PCRA counsel, J. Richard Narvin, Esquire, advising him that Mr. Brown had filed a complaint against him complaining that Mr. Narvin had not sent Mr. Brown a transcript from the PCRA hearing nor, despite Mr. Brown's repeated attempts, had anyone from Mr. Narvin's office contacted him since the hearing. ECF No. 2-3 at 30 (Disciplinary Board of the Supreme Court of PA, Letter dated 2/14/2008). PCRA counsel did not file any motions on Mr. Brown's behalf, but instead, wrote Mr. Brown advising him to get a form from the prison law library and file a new PCRA petition indicating that he lost his right to appeal through no fault of his own. ECF No. 2-3 at 31 to 32 (Office of Conflict Counsel, J. Richard Narvin, Esquire, letter dated 2/21/2008).

Immediately, on February 29, 2008, Mr. Brown filed a new PCRA petition to have his appellate rights reinstated. On March 4, 2008, the PCRA court appointed new counsel, Scott Coffey, Esquire, to represent Mr. Brown in his appeal. On March 28, 2008, Attorney Coffey timely filed a notice of appeal to the Superior Court on Mr. Brown's behalf. On January 26, 2009, the PCRA court entered its Rule 1925(a) opinion. On September 23, 2009, the Superior Court of Pennsylvania, relying solely on the PCRA court's opinion, affirmed the PCRA court's decision. ECF No. 2-2 at 14 ("We conclude that the PCRA court's opinion aptly analyzes each of Appellant's issues. Accordingly, we affirm the order based on the PCRA court's well-reasoned opinion."). Finally, on April 5, 2010, the Supreme Court of Pennsylvania denied Mr. Brown's Petition for Allowance of Appeal.

Petitioner, through counsel then filed the Petition, ECF No. 1, and an extensive Memorandum of Law in Support of Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. ECF No. 2. Respondents filed an Answer along with an appendix of exhibits. ECF No. 10. Respondents also caused the original state court record to be transmitted to the Clerk's Office. Petitioner filed a Reply to the Commonwealth's Answer to the Petition for Writ of Habeas Corpus (hereinafter the "Traverse"). ECF No. 13.

In June 2012, Petitioner, through counsel, sought leave to amend the Petition based upon the recently decided case of Martinez v. Ryan, __ U.S. __, 132 S.Ct. 1309 (2012). In the Martinez case, the United States Supreme Court changed the prior rule that ineffective assistance of PCRA trial counsel could not serve as "cause" to excuse a procedural default of claims of trial counsel's ineffectiveness. Accordingly, Petitioner sought to amend his Petition to include claims of trial counsel's ineffectiveness that had hitherto been considered procedurally defaulted because PCRA trial counsel failed to raise those claims. More specifically, Petitioner sought to add claims that trial counsel was ineffective for failing to call five more character witnesses in addition to the already existing claim that trial counsel was ineffective for failing to call two other character witnesses. ECF No. 16-2 at 1 to 2. Petitioner also sought to add a claim that trial counsel was ineffective for failing to object to the admission of hearsay testimony, based not only on state evidentiary law of hearsay, but also based upon Petitioner's Sixth Amendment right to confront witnesses, and relatedly, to add a claim that trial counsel was ineffective for failing to move the trial court to make appropriate on-the-record findings with regard to the hearsay exceptions. Id., at 2 to 3. Lastly, Petitioner sought to include in his original claim of cumulative error of trial counsel, these new additional claims of trial counsel's alleged errors asserted in the proposed Amended Petition as having prejudiced Petitioner when considered in their cumulative effect. Id., at 3 to 4.

The Court ordered Respondents to file a Response to the Petitioner's Motion for Leave to File an Amended Petition. ECF No. 18. The Respondents filed a Response, ECF No. 21, and, while not appearing to oppose the request for leave to file an Amended Petition, argued that the issues sought to be raised were meritless.

Petitioner then, through counsel, filed a Reply to the Respondents' Response, ECF No. 24, and a Brief in Support. ECF No. 25. In that Reply and Brief, Petitioner essentially withdrew all of the proposed amended claims and sought only to have the Court consider the three claims that were raised in the original Petition and MOL in light of Martinez v. Ryan. See, e.g., ECF No. 24 at 2 ("Mr. Brown respectfully withdraws that portion of Proposed Amendment Number Two which requests the addition of five witnesses' names to this issue."); id., at 3 ("Mr. Brown respectfully withdraws Proposed Amendments Numbers Three and Four [i.e., claims of trial counsel's ineffectiveness with regard to the alleged hearsay statement and Sixth Amendment confrontation clause claims]. After substantial research into the merits of these two issues, Mr. Brown believes that these issues are not meritorious. Mr. Brown further believes that these issues individually or cumulatively are not necessary to prevail in his case."); id. at 3 to 4 ("Because no amendments in the form of new habeas claims exist, there no longer exists the need to amend habeas claim number three which relates to the cumulative effective [sic] of the errors caused by trial counsel's ineffective assistance."). Accordingly, the only claims actually being raised herein are the two claims that were originally raised in the original Petition and the third claim of cumulative prejudice that was raised in the MOL. ECF No. 2 at 71 to 80. The only difference really is Petitioner's request that we review all of these claims in light of Martinez v. Ryan, which we shall do. See, e.g., ECF No. 25 at 4 ("Although the wording of the first habeas issue remains the same, Mr. Brown provides additional legal argumentation under Martinez as additional support for this Court to review the merits of this claim. . ."); id., at 14 ("Although the wording of the second habeas issue remains the same, Mr. Brown provides additional legal argumentation under Martinez as additional support for this Court to review the merits of this claim . . .").

All parties have consented to have the Magistrate Judge exercise plenary jurisdiction. ECF Nos. 12, 14. The case was subsequently reassigned to the undersigned. ECF No. 15.

II. LEGAL STANDARDS APPLICABLE TO SECTION 2254 PETITIONS

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, '101 (1996) ("AEDPA") which amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. ' 2254 was enacted on April 24, 1996. Because Petitioner=s habeas petition was filed after its effective date, AEDPA is applicable to this case. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000).

Where the state courts have reviewed a federal issue presented to them and disposed of the issue on the merits, and that issue is also raised in a federal habeas petition, AEDPA provides the applicable deferential standards by which the federal habeas court is to review the state courts' disposition of that issue. See 28 U.S.C. §2254(d) and (e).

In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court has expounded upon the standard found in 28 U.S.C. § 2254(d). In Williams, the Supreme Court explained that Congress intended that habeas relief for errors of law may only be granted in two situations: 1) where the state court decision was "contrary to . . . clearly established Federal law as determined by the Supreme Court of the United States" or 2) where that state court decision "involved an unreasonable application of[] clearly established Federal law as determined by the Supreme Court of the United States." Id. at 404-05 (emphasis deleted). The Court explained the two situations in the following terms:

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams, 529 U.S. at 412-13. The United States Court of Appeals for the Third Circuit has also elucidated the "contrary to" clause by noting that "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Werts v. Vaughn, 228 F.3d at 197 (quoting Matteo v. Superintendent, SCIAlbion, 171 F.3d 877, 888 (3d Cir. 1999)(en banc)). Moreover, it is Petitioner's burden to prove the state court decision is either contrary to or an unreasonable application of clearly established federal law. See Matteo, 171 F.3d at 888; Werts v. Vaughn, 228 F.3d at 197. Under the "contrary to" clause, the relevant universe of analysis is restricted to the holdings of United States Supreme Court cases as they existed at the time of the state court decision. Williams, 529 U.S. at 412; Renico v. Lett, 130 S.Ct. 1855, 1866 (2010). In contrast, under the "unreasonable application" clause, federal habeas courts may consider lower federal court cases in determining whether the state court's application of United States Supreme Court precedent was objectively unreasonable. Matteo, 171 F.3d at 890.

AEDPA also permits federal habeas relief where the state court's adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...


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