“[P]rejudice is not presumed where counsel fails to advise a client of his right to testify. Rather, the prejudicial effect of this failure depends on the significance of the facts to which the defendant might have testified . . . . ” (citing Palmer, 592 F.3d at 399)
How later courts described this case
- “[P]rejudice is not presumed where counsel fails to advise a client of his right to testify. Rather, the prejudicial effect of this failure depends on the significance of the facts to which the defendant might have testified . . . . ” (citing Palmer, 592 F.3d at 399)
- concluding that the petitioner failed to make an adequate showing that he was prejudiced by his attorney’s alleged failure to advise him of the right to testify
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Mark A. BROWN, :
: CIVIL ACTION
Petitioner, : NO. 13-3068
:
v. :
:
John KERESTES, et al., :
:
Respondents. :
ORDER
AND NOW, this 26th day of May, 2021, upon careful and
independent consideration of the pro se petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254, and after
review of the Report and Recommendation of United States
Magistrate Judge Lynne A. Sitarski and Petitioner’s objections
thereto, it is hereby ORDERED that:
1. The Report and Recommendation (ECF No. 37) is
APPROVED and ADOPTED;
2. Petitioner’s Objections (ECF No. 43) are
OVERRULED;1
3. The Petition for Writ of Habeas Corpus
(ECF No. 1) is DENIED and DISMISSED;
4. There is no basis for the issuance of a
certificate of appealability; and
5. The Clerk of Court is DIRECTED to mark the case
CLOSED.
AND IT IS SO ORDERED.
/s/ Eduardo C. Robreno
EDUARDO C. ROBRENO, J.
1 Judge Sitarski’s Report and Recommendation (“R&R”) recommends that the
instant habeas petition be dismissed. Pro se Petitioner raises six objections
to the R&R. The Court reviews de novo the portions of the R&R to which
Petitioner objects. See 28 U.S.C. § 636(b)(1). For the reasons set forth
below, the Court will overrule Petitioner’s objections and will approve and
adopt the R&R.
First, Petitioner objects to the R&R’s conclusion that the Superior
Court was reasonable in rejecting his argument that his murder and arson
charges were “inextricably intertwined” with his corrupt organizations
charge. A jury convicted Petitioner on all three counts, but he was
subsequently granted habeas relief on the corrupt organizations charge and
re-sentenced.
The Superior Court concluded that the charges were not “inextricably
intertwined” because evidence of Petitioner’s drug ring would have been
admissible at trial to establish motive, even without the corrupt
organizations charge. See Pa. R. Evid. 404(b).
The Court agrees with the R&R that this decision was neither contrary
to nor an unreasonable application of clearly established federal law. See
R&R 12.
Second, Petitioner objects to the R&R’s conclusion that grounds two,
three, and four of his habeas petition are inadequately developed.
Petitioner’s second ground for habeas relief argues that his conviction was
“obtained on a factual basis different than as charged,” his third ground
alleges the “[j]ury instruction improperly shifted the burden of proof,” and
his fourth ground asserts a “[c]onviction of less than proof beyond a
reasonable doubt of every element of the crime charged.” Habeas Pet. 7, 9-10.
The “supporting facts” section for each of these grounds repeats the
same factual argument Petitioner used to support ground one, stating only:
“Petitioner’s conviction on the charge of Corrupt Organization has been set
aside leaving murder in the first degree and arson which were inextricably
intertwined and considered as part of one prosecution which included the same
set of jury instruction on all charges.” Habeas Pet. 7, 9-11.
The Court agrees with the R&R that grounds two, three, and four are
inadequately developed. See R&R 13. To the extent Petitioner also objects to
the R&R’s analysis of the merits of grounds two, three, and four, the Court
agrees with and will adopt that aspect of the R&R as well. See R&R 13-15.
Third, Petitioner objects to the R&R’s conclusion that his ineffective
assistance of counsel claims are foreclosed from further review. Petitioner
avers trial counsel was ineffective for failing to follow the Vienna
Convention (ground five), failing to fully and adequately inform him of his
right to testify (ground six), and failing to request a directed verdict when
Petitioner’s co-defendants were acquitted (ground seven). Habeas Pet. 12-13.
The Court agrees with the R&R that these claims are procedurally
defaulted and that Petitioner has not shown cause for why the procedural
default should be set aside. See R&R 16-21.
Fourth, Petitioner objects to the R&R’s conclusion that his Vienna
Convention claim is meritless. This claim (ground five) alleges that Article
36 of the Vienna Convention was violated because although Petitioner was a
Jamaican national at the time of his arrest, the Jamaican Consulate was not
notified of his arrest. Habeas Pet. 12.
The Court agrees with the R&R that, even assuming Article 36 grants
Petitioner individually enforceable rights, Petitioner’s claim fails because
he has not shown that the failure to contact the Jamaican Consulate
prejudiced him. See R&R 18-20.
Fifth, Petitioner objects to the R&R’s conclusion that he has not shown
that he was prejudiced by trial counsel’s alleged failure to adequately
explain his right to testify (ground six).
The Court agrees with the R&R that even if counsel did fail to fully
inform Petitioner of his right to testify, the habeas petition does not
adequately explain how such an error impacted Petitioner’s case. See R&R 20;
see also Palmer v. Hendricks, 592 F.3d 386, 399 (3d Cir. 2010) (concluding
that the petitioner failed to make an adequate showing that he was prejudiced
by his attorney’s alleged failure to advise him of the right to testify); see
also Ruiz v. Superintendent Huntingdon SCI, 672 F. App’x 207, 211 (3d Cir.
2016) (“[P]rejudice is not presumed where counsel fails to advise a client of
his right to testify. Rather, the prejudicial effect of this failure depends
on the significance of the facts to which the defendant might have testified
. . . . ” (citing Palmer, 592 F.3d at 399)).
Finally, Petitioner objects to the R&R’s conclusion that his
ineffectiveness claim related to counsel’s failure to request a directed
verdict (ground seven) lacks merit.
The Court agrees with the R&R that trial counsel’s decision not to
request a directed verdict does not constitute ineffectiveness because such a
motion would almost certainly have been unsuccessful. See R&R 21.
For the reasons set forth above, the Court will overrule Petitioner’s
objections and will approve and adopt the R&R.