BROWN v. SMITH

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

KEVIN BROWN, :

Petitioner, :

:

v. : No. 18-2790

:

BARRY SMITH, the ATTORNEY GENERAL OF :

THE STATE OF PENNSYLVANIA, and the :

DISTRICT ATTORNEY’S OFFICE OF :

PHILADELPHIA COUNTY, :

Respondents. :

__________________________________________

O P I N I O N

Report and Recommendation, ECF No. 12 – Adopted

Joseph F. Leeson, Jr. October 1, 2019

United States District Judge

I. INTRODUCTION

In 2018, Petitioner Kevin Brown filed a pro se writ of habeas corpus pursuant to

28 U.S.C. § 2254 challenging his guilty plea in the Philadelphia County Court of Common Pleas

for two counts of third-degree murder and one count of unlawful possession of a firearm. He

additionally challenges the performance of his Post-Conviction Relief Act (“PCRA”) counsel.

Magistrate Judge Thomas J. Rueter issued a Report and Recommendation (“R&R”)

concluding Brown did not exhaust his administrative remedy for his claim challenging his guilty

plea; however, the R&R further concluded Petitioner knowingly and voluntarily pled guilty as

evidenced by his colloquy. Moreover, the R&R determined Brown’s claim challenging the

performance of his PCRA counsel is not reviewable. The Magistrate Judge recommends that the

habeas petition be denied and that no certificate of appealability be granted.

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Brown filed objections to the R&R.1 Furthermore, pending before this Court is a motion

filed by Brown to stay his petition in order to continue his state PCRA claim. After de novo

review, this Court overrules the objections and adopts the findings and conclusions in the R&R.

The habeas petition is denied and dismissed and Brown’s motion to stay is denied.

II. STANDARD OF REVIEW

When objections to a report and recommendation have been filed under 28 U.S.C.

§ 636(b)(1)(C), the district court must make a de novo review of those portions of the report to

which specific objections are made. 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885 F.2d 1099,

1106 n.3 (3d Cir. 1989). “District Courts, however, are not required to make any separate

findings or conclusions when reviewing a Magistrate Judge’s recommendation de novo under 28

U.S.C. § 636(b).” Hill v. Barnacle, 655 F. App’x. 142, 147 (3d Cir. 2016). The “court may

accept, reject, or modify, in whole or in part, the findings and recommendations” contained in

the report. 28 U.S.C. § 636(b)(1)(C).

III. ANALYSIS

This Court has conducted de novo review and overrules Brown’s objections to the R&R.

Magistrate Judge Rueter thoroughly reviewed the issues presented in this case, and succinctly

analyzed the facts and applicable legal authority. The findings and conclusions in the R&R are

adopted and incorporated herein. This Court writes separately only to address Petitioner’s

objections.

1 In the interests of justice, this Court construed Brown’s late traverse as objections to the

R&R in addition to the actual, untimely, objections Brown filed.

2

In his objections, Brown asserts that the Magistrate Judge had been aware that “one of the

officers involved in his case had legal problems of their own.” See Traverse, ECF No. 15, see

also Objs, ECF No. 16 (quoting R&R at 9, ECF No. 12). However, the document Brown cites

addresses how counsel’s legal strategy would have differed but for the police officer’s legal

issues. Objs., Ex. B. It does not address how Brown’s guilty plea was not knowing, willful, or

voluntary. Brown does not state that he would not have pled guilty because he is actually

innocent. Moreover, in Petitioner’s traverse, he cites being held for “32.25 hours,” but fails to

address how this affected his plea in court. The case he cites, Miranda v. Arizona, 384 U.S. 436

(1966), has no bearing on whether a guilty plea is knowingly, willful and voluntary. The

objection is overruled.

Next, Brown alleges he exhausted his claim that his confession was coerced. As correctly

noted in the R&R, however, Brown failed to develop any factual basis for the claim and cannot

revive it for the first time on a federal habeas. See Baldwin v. Reese, 541 U.S. 27 (2004) (stating

it is well settled before seeking a federal writ of habeas corpus, a state prisoner must exhaust

available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the state the “opportunity to

pass upon and correct” alleged allegations of its prisoners’ federal rights). Moreover, the

evidence presented for Petitioner’s guilty plea showed he knowingly, willfully, and voluntarily

entered into his plea without coercion. See Trans. of Guilty Plea, ECF No. 11. The objections in

this regard are overruled.

Brown’s last objection avers his PCRA counsel failed to explain how Detective Dove

coerced his guilty plea, and, thus, was ineffective. See Objs. 3-4; see also Traverse 1-2. Brown

cites to Martinez v. Ryan, 566 U.S. 1 (2012). Traverse 2. The Magistrate Judge correctly opines

that the ineffective assistance of PCRA counsel is not itself a cognizable habeas claim. Having

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cited Martinez, however, Brown apparently alleges that PCRA counsel’s ineffectiveness is

“cause” to excuse his procedural default as to his claim that his confession was coerced.

“Under Martinez v. Ryan, 566 U.S. 1 (2012), the failure of collateral attack counsel to

raise an ineffective assistance of trial counsel claim in an initial-review collateral proceeding can

constitute ‘cause’ if (1) collateral attack counsels failure itself constituted ineffective assistance

of counsel under Strickland, and (2) the underlying ineffective assistance of trial counsel claim is

‘a substantial one.’” Glenn v. Wynder, 743 F.3d 402, 409-10 (3d Cir. 2014) (citing Martinez, 132

S.Ct. at 1319). The default will be excused only where the petitioner establishes that PCRA

counsel’s conduct was such that no competent attorney would have followed it, and that “but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 687, 694. In order to establish that a claim is “substantial,” Petitioner

must demonstrate that “the claim has some merit.” Martinez, 132 S.Ct. at 1318. In making this

determination, the Martinez Court advises courts to adopt the test normally used for deciding

whether it is appropriate to issue a certificate of appealability: if “reasonable jurists” would find

the claim to be “debatable.” See Miller-El v. Cockrell, 123 S. Ct. 1029 (2003); Martinez, 132

S.Ct. at 1318-19.

Here, Brown fails to establish his PCRA counsel’s performance constituted ineffective

assistance that caused his default. The evidence presented establishes Brown entered his plea

knowingly, willfully, and voluntarily. Furthermore, Brown’s only evidence presented regarding

Detective Dove’s conduct was a letter from his trial counsel explaining how counsel’s trial

strategy would have differed. This letter did not state Brown would not have pled guilty had be

known of Detective Dove’s misconduct. Any allegation to ineffectiveness is not “substantial”

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within the meaning of Martinez. See Mobey v. Truitt, 2019 U.S. LEXIS 102611, at *27 (E.D. Pa.

June 18, 2019).

Moreover, Brown cites to state law cases to support his claim. However, Brown fails to

cite to federal case law to support his claim. Thus, the cases he cites are inapposite to his claim.

Brown merely attempts to repackage his guilty plea objection into a different objection. The

objection is overruled.

Lastly, Brown filed a Motion Requesting a Stay of Abeyance so he can exhaust his state

requirements. See ECF No. 17. However, the claims are being dismissed as procedurally

deficient, not simply unexhausted. Brown fails to cite to the requisite good cause necessary to

warrant a stay. Brown instead cites to cases without specifically justifying his cause. See Rhines

v. Weber, 544 U.S. 269 (2005) (stating upon a showing of good cause, the Court can put the

federal proceedings on hold while petitioner pursues the available state remedies). The motion is

denied.

The petition for writ of habeas corpus is denied and dismissed and a certificate of

appealability (“COA”) is denied.2 Jurists of reason would neither find debatable that the claims

are procedurally defaulted nor that Brown’s claims have merit. See Murphy v. Superintendent

2 “Under the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’), a ‘circuit

justice or judge’ may issue a COA only if the petitioner ‘has made a substantial showing of the

denial of a constitutional right.’” Tomlin v. Britton, 448 F. App’x 224, 227 (3d Cir. 2011) (citing

28 U.S.C. § 2253(c)). “When the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a COA should issue when the

prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

484 (2000). Furthermore, for issues determined on the merits, a petitioner must show that

"jurists of reason could disagree with the district court's resolution of his constitutional claims or

that jurists could conclude the issues presented are adequate to deserve encouragement to

proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

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Albion SCI, No. 17-1391, 2017 U.S. App. LEXIS 16948, at *1 (3d Cir. 2017) (“Jurists of reason

would not find it debatable that the District Court was correct in its ruling that Appellant’s

habeas corpus claim is barred due to a procedural default.”).

IV. CONCLUSION

After de novo review, this Court agrees with the Magistrate Judge that the habeas petition

either lacks merit or contains claims that are procedurally defaulted. Brown’s objections to the

R&R are overruled and his Motion for a Stay and Abey is denied. This Court adopts the findings

and conclusions in the R&R. The habeas petition is denied and dismissed.

A separate Order follows.

BY THE COURT:

/s/ Joseph F. Leeson, Jr.___________

JOSEPH F. LEESON, JR.

United States District Judge

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