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Brown v. Folino

United States District Court, E.D. Pennsylvania

September 16, 2014

WILLIAM BROWN
v.
LOUIS FOLINO, et al.

MEMORANDUM

J. WILLIAM DITTER, Jr., District Judge.

Presently before me is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by William Brown. Brown, who is currently incarcerated in the Greene State Correctional Institute in Waynesburg, Pennsylvania, challenges his judgment of sentence for third-degree murder, criminal conspiracy, attempted murder, possession of an instrument of crime and aggravated assault. For the reasons that follow, the petition will be denied.

I. FACTS AND PROCEDURAL HISTORY:

The state court summarized the relevant facts as follows:

[Brown's] convictions arose from an incident that occurred on December 22, 2004, in front of a residence on South Aldan Street in Philadelphia. [Brown] and an accomplice approached four males sitting on porch steps, drew out firearms, and opened fire on the defenseless victims, who attempted to flee. While one victim did escape unharmed, two others were badly wounded, as was a female bystander. Tragically, the fourth male, a 15-year-old boy, was killed.

Commonwealth v. Brown, No. 369 EDA 2008, at 1-2 (Pa.Super. Jan. 13, 2009).

Brown entered into a negotiated agreement to plead guilty to third-degree murder, criminal conspiracy, attempted murder, possession of an instrument of crime and two counts of aggravated assault.[1] In exchange, the Commonwealth agreed not to proceed on capital murder charges. On May 25, 2006, Brown was sentenced to an aggregate term of 40 to 80 years of imprisonment.

Brown filed a pro se post-sentence motion seeking modification of his sentence and challenging the validity of his guilty plea. Plea counsel moved to withdraw his appearance. After a hearing, the trial court granted plea counsel's motion to withdraw and appointed new counsel to represent Brown on his post-sentence motion. Brown's motion was denied on November 3, 2006. Brown did not file a direct appeal in the Superior Court.

On May 4, 2007, Brown filed a timely pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541, et seq. Counsel was appointed to represent Brown, and he subsequently filed a letter pursuant to Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. 1988), certifying that he had reviewed the entire record and concluded that there were no meritorious issues to advance before the PCRA court. The PCRA court dismissed Brown's petition on January 9, 2008, and permitted counsel to withdraw.

Brown presented the following claims on appeal to the Pennsylvania Superior Court:

1) his right to effective assistance of counsel was violated by post-sentence counsel's failure to file a direct appeal;
2) his right to effective assistance of counsel and due process was violated by trial counsel's failure to file a pretrial motion to dismiss pursuant to Pa.R.Crim.P. 600; and
3) his right to effective assistance of counsel was violated by trial counsel coercing him to plead guilty and assuring him that he faced and would receive a sentence of 15 to 30 years.

On January 13, 2009, the Pennsylvania Superior Court affirmed the denial of PCRA relief for Brown's second and third claims, but remanded his case to the lower court for an evidentiary hearing on the issue of whether post-sentence counsel was ineffective for failing to consult with Brown about a direct appeal. Commonwealth v. Brown, No. 369 EDA 2008 (Pa.Super. Jan. 13, 2009).

After holding an evidentiary hearing on November 24, 2009, the PCRA court determined that Brown had "knowingly, intentionally, and voluntarily decided to forego the filing of a direct appeal and to file, instead, for PCRA relief[.]" Commonwealth v. Brown, No. 3575 EDA 2009 (Pa.Super. Oct. 8, 2010) (citing Order, 11/25/09, at 2). The Pennsylvania Superior Court affirmed the denial of PCRA relief on October 8, 2010. Id . The Pennsylvania Supreme Court denied Brown's petition for allowance of appeal on April 26, 2011.

On May 13, 2011, Brown filed this timely petition for a federal writ of habeas corpus asserting the following claims of ineffective assistance of counsel:[2]

1) plea counsel was ineffective for failing to file a pretrial motion to dismiss charges when the Commonwealth failed to bring him to trial in a timely fashion, counsel was ineffective for failing to present speedy trial issues post-sentence, and PCRA counsel was ineffective for failing to allege previous counsel's ineffectiveness on PCRA appeal;
2) plea counsel induced him to plead guilty based on the assurance that he would be sentenced to 15 to 30 years of imprisonment, post-sentence counsel for was ineffective for failing to raise coercion issue on post-sentence motions and PCRA counsel was ineffective for failure to investigate claim of ineffective assistance of counsel due to coercion;
3) post-sentence counsel was ineffective for failing to perfect a direct appeal and PCRA counsel was ineffective for failing to properly present issues on PCRA appeal; and
4) plea counsel was ineffective for failing to investigate and/or properly interview witnesses or officers; spend time with Brown; and investigate potential defenses.

Respondents filed an answer to Brown's habeas petition asserting that Brown is not entitled to federal habeas relief because his claims are procedurally defaulted and/or meritless.

On May 16, 2011, Brown also filed a pro se "Motion to Withdraw Guilty Plea Nunc Pro Tunc" in state court alleging that he was induced to plead guilty due to counsel's failure to interview witnesses, investigate various defenses, and sufficiently communicate with him. Brown's motion was construed as a PCRA petition and dismissed by the PCRA court as untimely on May 16, 2013. The Pennsylvania Superior Court affirmed the dismissal on March 6, 2014. ...


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