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Brown v. Bickell

United States District Court, E.D. Pennsylvania

April 23, 2015

KIRK A. BROWN
v.
TABB BICKELL, et al.

ORDER

STEWART DALZELL, District Judge.

AND NOW, this 23rd day of April, 2015, upon consideration of Brown's pro se petition for a writ of habeas corpus (docket entry # 1), our May 14, 2014 Order referring this matter to the Hon. Lynne A. Sitarski for a Report and Recommendation ("R&R"), Judge Sitarski's R&R (docket entry # 13), and petitioner Brown's objections thereto (docket entry # 18), and the Court finding that:

(a) On April 12, 2014[1] Brown filed a petition for a writ of habeas corpus raising two claims - ineffective assistance of counsel and whether the evidence was sufficient to support first-degree murder, Pet. at ¶ 12;

(b) On December 24, 2014, Judge Sitarski entered a thirty-page R&R reviewing the petitioner's two claims and recommending that his petition for a writ of habeas corpus be denied;

(c) On February 5, 2015, the Clerk of Court docketed Brown's objections pursuant to 28 U.S.C. § 636(b)(1)(C) and Local R. Civ. P. 72.1 (IV)(b) and we must now "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made [and] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge, " 28 U.S.C. § 636(b)(1)(C); see also Sullivan v. Cuyler , 723 F.2d 1077, 1085 (3d Cir. 1983);

(d) The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") requires federal courts to grant considerable deference to state court decisions:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless adjudication of the claim-
(1) Resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) Resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding[, ]

28 U.S.C. § 2254(d);

(e) It is well-established that before filing a Section 2254 petition a petitioner must exhaust all state remedies by fairly presenting each claim, Toulson v. Beyer , 987 F.2d 984, 987 (3d Cir. 1993); see also Picard v. Connor , 404 U.S. 270, 275 (1971), and any unexhausted claim is procedurally defaulted unless it falls into the narrow exception where the petitioner can show (1) cause for the default and actual prejudice, or (2) that a fundamental miscarriage of justice will result from a failure to consider the claim, Coleman v. Thompson , 501 U.S. 722, 749 (1991);

(f) Judge Sitarski's R&R provided a succinct description of the underlying facts:

On July 7, 2005, around 5:00 p.m., Donovan Lindsay returned to his home in North Philadelphia and discovered someone had entered his home and removed some clothing and personal effects belonging to [Petitioner]. Around 5:45 p.m., Lindsay drove to a West Philadelphia neighborhood and parked and left his car in the middle of the street, engine still running. He walked over to a fence separating the sidewalk and the rear yard of a residence at 216 S. 49th Street where [Petitioner] and several others were sitting. For several moments, and just a few feet apart, [Petitioner] and Lindsay argued over the fence. When [Petitioner] pulled a semiautomatic handgun from his belt, Lindsay, who was unarmed, turned and ran off past his car and across and down the street. [Petitioner] fired off five rounds while moving onto the sidewalk, hitting Lindsay in the back with two rounds that pierced his heart, liver, lung and kidney and caused his death at the scene[, ]

R&R at 1, 2 (quoting Commonwealth v. Brown, No. 534 EDA 2008 (Pa.Super. Ct. Apr. 3, 2009);

(g) Brown was arrested on May 28, 2006 and charged with one count of murder in the first degree, two counts of violating the Uniform Firearms Act, and one count of possession of an instrument of crime, all in violation of the relevant Pennsylvania statutes, id. at 2;

(h) After a two-day bench trial, he was found guilty of one count of first degree murder, one count of violating the Uniform Firearms Act, and one count of possession of an instrument of crime and, on February 7, 2008 he was sentenced to life imprisonment, id.;

(i) Thereafter, his trial counsel timely filed a Notice of Appeal and withdrew from representing him, id.;

(j) On March 25, 2008, the trial court ordered Brown's appellate counsel to file a Pa. R. App. P. 1925(b) statement of matters complained of on appeal and gave Brown's counsel an additional twenty-one days, until April 18, 2008, to file such a statement, id. at 3;

(k) On April 24, 2008, petitioner's counsel filed an untimely Pa. R. App. P. 1925(b) statement, raising seven issues:

1. The evidence was insufficient to support the charge of first degree murder;
2. The verdict was against the weight of the evidence;
3. The court erred in admitting taped testimony of Phillip Williams when the record failed to support a ruling of unavailability;[2]
4. The in-court identification by Sandra Claton was suggestive because she had made no post-incident or out-of-court identification before trial;
5. Trial counsel was ineffective for failing to challenge that in-court identification;
6. Trial counsel was ineffective for failing to (1) conduct an investigation or hire an investigator, (2) contact three eye-witnesses who would have testified Brown did not shoot the victim, or (3) meet with Brown to develop a defense;
7. Brown did not knowingly, intelligently or voluntarily waive his right to a jury trial because his counsel assured him the verdict would only be for third degree murder[, ]

id. at 3, 4;

(l) Because the Pa. R. App. P. 1925(b) statement was untimely the trial court found all issues were waived, but nonetheless reached the merits holding that all the issues Brown raised were without merit, id.;

(m) On direct appeal, the Superior Court agreed and found the claims were waived due to untimeliness and affirmed the trial court's finding that the claims were without merit, id. at 4;

(n) By Order dated September 9, 2009 the Pennsylvania Supreme Court denied allocatur review, id.;

(o) On January 26, 2010 Brown filed a timely pro se collateral appeal pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA") and, with court-appointed counsel, subsequently sought relief in an Amended PCRA petition for three claims of trial counsel ineffectiveness for counsel's (1) representation that Brown would be found guilty of nothing more than third degree murder; (2) failure to object to the introduction of Williams's taped testimony; and (3) failure to investigate Williams's background and immigration status to cast doubt on his credibility, id. at 5;

(p) Thereafter, the PCRA court dismissed Brown's claims and Brown appealed; the Superior Court affirmed the PCRA court's denial, and, on July 25, 2013, the Pennsylvania Supreme Court denied allocatur review, id. at 5, 6;

(q) Brown then filed the present habeas petition, id. at 6;

(r) Turning first to Brown's ineffective assistance claims, Judge Sitarski applied the familiar Strickland standard to consider Brown's allegations of trial counsel ineffectiveness, see Strickland v. Washington , 466 U.S. 668, 687 (1984);[3]

(s) As to Brown's first ineffectiveness claim - that trial counsel failed to conduct an adequate pretrial investigation - Judge Sitarski observed that Brown had raised this issue in his initial pro se PCRA petition but that his Amended PCRA petition failed to raise it, and, accordingly, Brown failed to exhaust this claim because he did not argue it first through the Superior Court, R&R at 10;

(t) Because the statute of limitations has run on Brown's PCRA claim, this claim is now procedurally defaulted, Judge Sitarski reasoned, id. at 11 (citing Keller v. Larkins , 251 F.3d 408, 415 (3d Cir. 2001));[4]

(u) Judge Sitarski also considered Brown's attempt to excuse his default by relying on Martinez v. Ryan , 132 S.Ct. 1309 (2012) (holding that a petitioner can demonstrate cause to excuse a procedural default if his state requires claims of trial counsel ineffectiveness to be deferred to state collateral proceedings and counsel at that initial post-conviction proceeding was ineffective for failing to raise trial counsel ineffectiveness), R&R at 11;

(v) Judge Sitarski concluded that Martinez does not help Brown because it requires that the habeas petitioner establish that the underlying claim of trial counsel ineffectiveness has "some merit, " 132 S.Ct. at 1318, and Brown's claims that the "many people who witnessed the shooting" and unidentified others would have established his actual innocence, see Pet. habeas at 38, 39, 41, were unsubstantiated because Brown

has not provided any evidence in support of his claim that counsel's pretrial preparation was inadequate. Indeed, he has not identified any potential witnesses by name, nor has he described, except in the broadest terms, the facts to which they would have testified. Such vague allegations cannot establish an ineffectiveness claim with some merit[, ]

R&R at 12, 13 (internal citations omitted);

(w) Judge Sitarski recommends finding that this claim was not subject to federal habeas review because it is procedurally defaulted and Brown had not shown cause and prejudice under which the Court could excuse this default, id. at 13;

(x) As to Brown's claim that his counsel was ineffective for failing to object to pre-recorded testimony, Judge Sitarski concluded that this claim, too, lacked merit, id. at 14;

(y) Prior to trial the Commonwealth filed a motion to preserve Williams's testimony in case of future unavailability as he was in the custody of the Immigration and Naturalization Service ("INS") pending deportation to his native Jamaica, id.;

(z) Over petitioner's counsel's objections the trial court granted the prosecution's motion and Williams was transferred to Philadelphia where he testified under oath, before a judge and in Brown's presence and was subjected to cross-examination by Brown's counsel, id.; see also N.T. 12/5/2007 at 127;

(aa) The testimony was preserved on videotape, R&R at 14;

(bb) At the time of trial Williams was still in INS custody and the Commonwealth, arguing that he was unavailable, pressed to introduce his videotaped testimony at trial, id. at 15;

(cc) Brown's counsel and the Court then engaged in the following colloquy:

Def.: Your Honor, just for the record, I'm not certain whether the availability of this witness is such today that he cannot be here in person. I understand he is under the aegis of the -
Court: INS.
Def.: Immigration and Naturalization Service. That doesn't mean he's not available at this point. If he's in the country, he's subject to subpoena.
Court: Well, I don't know whether he's in the country.
Def.: I don't know that either, Your Honor. I just ...

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