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Brooks v. Garman

United States District Court, E.D. Pennsylvania

July 8, 2019

BASEEM BROOKS, Petitioner,
v.
MARK GARMAN, ET AL., Respondents.

          ORDER

          MITCHELL S. GOLDBERG, J.

         AND NOW, this 8th day of July, 2019, upon careful and independent consideration of the Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. No. 1), and after review of the Report and Recommendation of United States Magistrate Judge Lynne A. Sitarski ("R&R") (Doc. No. 14), and Petitioner's Objections thereto (Doc. No. 19), I find as follows:

         1. In 2009, Petitioner, Baseem Brooks, was convicted of, among other things, robbery and aggravated assault arising out of an armed home invasion.[1] Petitioner's conviction was affirmed on direct appeal by the Pennsylvania Superior Court, and the Pennsylvania Supreme Court denied direct review in 2012.

         2. In 2012, Petitioner filed a petition for state collateral review under the Pennsylvania Post-Conviction Relief Act ("PCRA"). Following an evidentiary hearing, Petitioner's PCRA petition was dismissed. In 2017, the Pennsylvania Superior Court affirmed the dismissal of the petition, and the Pennsylvania Supreme Court denied review.

         3. Thereafter, Petitioner initiated these federal habeas proceedings, pro se, raising three claims: (1) trial counsel was ineffective for failing to convey to Petitioner a plea offer made by the District Attorney; (2) the trial court failed to give a jury instruction regarding eyewitness identification, pursuant to the Pennsylvania Supreme Court's decision in Commonwealth v. Kloiber, 106 A.2d 820 (1954); and (3) the trial court "abused [its] discretion when it created a prima facie presumption by incorporating evidence of another charged crime into the instant case." (R&R 4.)

         4. In her R&R, Judge Sitarski concluded that the first claim-that trial counsel was ineffective for failing to communicate a plea offer-failed because the PCRA court made a reasonable factual determination, after conducting an evidentiary hearing, that trial counsel did, in fact, convey the plea offer at issue to Petitioner. Judge Sitarski concluded that the remaining two claims failed because they merely allege violations of state law, which are not cognizable on federal habeas review. (See R&R 9-19.)

         5. Petitioner has filed objections to the R&R, challenging only Judge Sitarski's conclusion as to his first claim regarding trial counsel's alleged failure to communicate a plea offer. Accordingly, I will review that claim de novo and will not re-address the other claims, apart from noting that Judge Sitarski addressed the pertinent issues thoroughly and correctly. See Goney v. Clark, 749 F.2d 5, 6 (3d Cir. 1984) (holding that de novo review by a district court is not required where no specific objection to the report and recommendation is made).

         6. As Judge Sitarski noted in her R&R, where a state court has made factual findings, including credibility determinations, those factual findings are "presumed correct on [federal] habeas review, unless rebutted by clear and convincing evidence." (R&R 12 (citing 28 U.S.C. § 2254(e)(1).)

         7. On January 7, 2016, the PCRA court held an evidentiary hearing on Petitioner's claim that his trial counsel failed to communicate a plea offer from the District Attorney. At the hearing, the PCRA court heard testimony from both Petitioner and Petitioner's trial counsel, Lloyd Long. Following this testimony, the PCRA court announced from the bench its findings of fact:

THE COURT: Just a credibility issue. Okay. I'm prepared to render a finding of fact. I do find Mr. Long to have been credible and I do --1 very firmly believe he communicated this offer to [Petitioner]. So I will find as a fact that the offer was communicated. As a result of that, the issue has no merit. There is no factual basis for it. So I am going to deny that claim.

         (PCRA Hrg. Tr. at 44:3-13.)

         8. In her R&R, Judge Sitarski concluded that this factual finding was not unreasonable in light of the record, and that Petitioner had not rebutted the finding by clear and convincing evidence. (R&R 12-13.)

         9. In his Objections to the R&R, Petitioner offers several arguments as to why the PCRA court's factual determination was unreasonable. However, none of these arguments amount to clear and convincing evidence rebutting the PCRA court's factual determination.

         10. First, Petitioner argues that his trial counsel "admitted that he [had] seen Petitioner only twice prior to the start of trial and most of the communication [between them] was with Petitioner's mother." (Objections 1.) Even if true, this fact does not rebut trial counsel's testimony at the evidentiary hearing -found to be credible by the PCRA court-that he communicated to Petitioner the plea offer at issue on "at least two" occasions before trial. (PCRA Hrg. Tr. at 31:13-19.) Indeed, trial counsel testified that the first time he conveyed the plea offer to ...


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