The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NAFIS ANTUAN FAISON, :
Petitioner, :
: No. 1:18-cv-2440
v. :
: (Judge Rambo)
JAMEY LUTHER, et al., : (Magistrate Judge Mehalchick)
Respondents :
MEMORANDUM
Before the Court are pro se Petitioner Nafis Antuan Faison (“Petitioner”)’s
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1),
motion to compel discovery (Doc. No. 7), and motion for clarification/status of case
(Doc. No. 8), Magistrate Judge Mehalchick’s October 31, 2019 Report and
Recommendation (Doc. No. 22) recommending that Petitioner’s § 2254 petition be
denied and that his motions be dismissed as moot, and Petitioner’s objections (Doc.
No. 23) to the Report and Recommendation. For the following reasons, the Court
will overrule Petitioner’s objections, adopt the Report and Recommendation, deny
his § 2254 petition, and dismiss as moot his remaining motions.
I. BACKGROUND
Petitioner was tried and convicted in the Court of Common Pleas for
Lycoming County of two (2) misdemeanor counts of possession of a controlled
substance, one misdemeanor count of possession of drug paraphernalia, one
misdemeanor count of possession of a small amount of marijuana, and one felony
count of possession of a controlled substance with intent to deliver. The factual
background of this case has been set forth at length by Magistrate Judge Mehalchick
in her Report and Recommendation and, therefore, will not be repeated herein. (Doc.
No. 22 at 2-8.) Petitioner was sentenced to a total of five (5) to ten (10) years’
incarceration. His convictions and sentence were upheld on both direct and post-
conviction review in the Pennsylvania state courts.
In his § 2254 petition, Petitioner raises the following claims for relief:
1. The PCRA Court’s conclusion that probable cause existed to support
the authorization of the disclosure of [Petitioner’s] cell phone data was
clearly erroneous, thus [Petitioner] was denied effective assistance of
counsel where trial counsel failed to file a motion to suppress evidence
gleaned from [Petitioner’s] cell phone data;
2. The PCRA Court’s conclusion that police had the right to enter
Simpson’s apartment and perform a protective sweep without a search
warrant was clearly erroneous, thus [Petitioner] was denied effective
assistance of counsel where trial counsel failed to file a motion to
suppress evidence seized form the apartment;
3. The PCRA Court’s conclusion that [Petitioner] failed to establish any
significant or material misstatement in the affidavit of probable cause
in support of the search warrant on Simpson’s apartment was clearly
erroneous, and that his trial counsel was ineffective for failing to
investigate Simpson. [Petitioner] alleges that an investigation would
have brought to light false averments contained in the affidavit of
probable cause in support of his arrest warrant, thus the affidavit should
have been suppressed; and
4. Trial counsel was ineffective for failing to attempt to suppress evidence
obtained when police reentered Simpson’s apartment without a
warrant, and after conducting a protective sweep.
(Doc. No. 22 at 8.) In her Report and Recommendation, Magistrate Judge
Mehalchick recommends that Ground Four be dismissed as procedurally defaulted
“without justifiable cause to excuse such procedural default.” (Doc. No. 22 at 11-
21.) She recommended further that Petitioner’s remaining grounds be dismissed as
meritless, a certificate of appealability not issue, and that Petitioner’s pending
motions be dismissed as moot. (Id. at 21-30.)1
In his objections, Petitioner challenges Magistrate Judge Mehalchick’s
recommendations regarding Grounds Four and One in his § 2254 petition. (Doc.
No. 23.) With respect to Ground Four, Petitioner objects to Magistrate Judge
Mehalchick’s conclusion “that this claim was not fairly presented to the
Pennsylvania state court.” (Id. at 1.) He claims further that Magistrate Judge
Mehalchick incorrectly concluded that his reasonable expectation of privacy in the
dwelling where he was an overnight guest dissolved when he fled the apartment.
(Id. at 1-3.) With respect to Ground One, Petitioner argues that Magistrate Judge
Mehalchick unreasonably applied Illinois v. Gates, 462 U.S. 213 (1983) and also
1 Magistrate Judge Mehalchick also noted that Petitioner included a fifth ground for relief in his
§ 2254 petition, which was written on the back of the petition and inadvertently not scanned when
the § 2254 petition was filed. (Doc. No. 22 at 21 n.22.) This claim was that “trail counsel was
ineffective for not consulting with [Petitioner] about filing the motions to suppress evidence which
are addressed herein.” (Id.) Magistrate Judge Mehalchick concluded that because the motions to
suppress would have been meritless, counsel could not be ineffective for failing to so consult, and
therefore, the claim should be dismissed. (Id.) Petitioner has not challenged this recommendation
in his objections. Accordingly, the Court will adopt the Report and Recommendation with respect
to this fifth ground for relief.
unreasonably applied the facts. (Id. at 4.) Specifically, Petitioner maintains that
affiant who prepared the affidavit of probable cause to issue a trace and tracking
device for his cell phone did not corroborate the information provided by a parolee.
(Id. at 4-5.)
II. LEGAL STANDARD
When objections are timely filed to a magistrate judge’s report and
recommendation, the district court must review de novo those portions of the report
to which objections are made. 28 U.S.C. § 636(c); Brown v. Astrue, 649 F.3d 193,
195 (3d Cir. 2011). Although the standard is de novo, the extent of review is
committed to the sound discretion of the district judge, and the court may rely on the
recommendations of the magistrate judge to the extent it deems proper. Rieder v.
Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000) (citing United States v. Raddatz,
447 U.S. 667, 676 (1980)).
For those sections of the report and recommendation to which no objection is
made, the court should, as a matter of good practice, “satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.” Fed.
R. Civ. P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply
Intern., Inc., 702 F. Supp. 2d 465, 469 (M.D. Pa. 2010) (citation omitted).
Nonetheless, whether timely objections are made or not, the district court may
accept, not accept, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge. 28 U.S.C. § 636(b)(1); Local Rule 72.31.
III. DISCUSSION
As noted supra, Petitioner only objects to Magistrate Judge Mehalchick’s
recommendation to dismiss Grounds Four and One set forth in his § 2254 petition.
He does not challenge her recommendations concerning Grounds Two and Three.
Following an independent review of the record, the Court is satisfied that the Report
and Recommendation contains no clear error with respect to Grounds Two and
Three. Accordingly, the Court will adopt the Report and Recommendation with
respect to these grounds for relief.
A. Ground Four
With respect to Ground Four, Petitioner avers that Magistrate Judge
Mehalchick erroneously concluded that his claim was not fairly presented to the
Pennsylvania state courts when he had raised it in his supplemental PCRA petition.
(Doc. No. 23 at 1.) Petitioner maintains further that Magistrate Judge Mehalchick
concluded that the procedural default of Petitioner’s claim should not be excused
because any expectation of privacy he had in the apartment dissolved when he fled
and was subsequently arrested. (Id. at 2-3.)
In support of his claim, Petitioner cites Payton v. New York, 445 U.S. 573
(1980). (Doc. No. 23 at 2-3.) In Payton, the Supreme Court concluded that “an
arrest warrant founded on probable cause implicitly carries with it the limited
authority to enter a dwelling in which the suspect lives when there is reason to
believe the suspect is within.” 445 U.S. at 603. Petitioner avers that pursuant to
Payton, the police did not have authority to re-enter the apartment and conduct a
search. (Doc. No. 23 at 3.) Upon review of the record, however, the Court concludes
that Magistrate Judge Mehalchick correctly concluded that Petitioner’s procedural
default of Ground Four should not be excused. She correctly noted that as an
overnight guest, Petitioner enjoyed a “legitimate expectation of privacy for as long
as [he was] in the [apartment].” United States v. Pettiway, 429 F. App’x 132, 135
(3d Cir. 2011) (citing Minnesota v. Olson, 495 U.S. 91, 98-99 (1990)). That
expectation, however, “fails when the overnight guest departs the home.” Id. As
Magistrate Judge Mehalchick correctly noted, Petitioner left the apartment and was
arrested before police re-entered it. Accordingly, because Petitioner was not present
when the re-entry occurred, he would have lacked standing to challenge the re-entry
and subsequent search. See United States v. Harris, 884 F. Supp. 2d 383, 390 n.5
(W.D. Pa. 2012). Accordingly, Petitioner’s objection will be overruled, and the
Court will adopt Magistrate Judge Mehalchick’s Report and Recommendation with
respect to Ground Four.
B. Ground One
With respect to Ground One, Petitioner maintains that Magistrate Judge
Mehalchick unreasonably applied Illinois v. Gates, 462 U.S. 213 (1983) and
unreasonably applied the facts. (Doc. No. 23 at 4.) Petitioner asserts that the affiant
who prepared the affidavit of probable cause to issue a trace and tracking device for
Petitioner’s cell phone never corroborated the information provided by parolee
Steven Williams. (Id.) In making these arguments, Petitioner essentially reiterates
the arguments previously advanced in his traverse. Having considered this
challenge, the Court concludes that Magistrate Judge Mehalchick correctly and
comprehensively addressed the substance of this objection in her Report and
Recommendation. Accordingly, Petitioner’s second objection will be overruled.
IV. CONCLUSION
For the foregoing reasons, the Court will overrule Petitioner’s objections
(Doc. No. 23) and adopt the Report and Recommendation (Doc. No. 22). The Court
will, therefore, deny Petitioner’s § 2254 petition (Doc. No. 1) and dismiss as moot
his remaining motions (Doc. Nos. 7, 8). An appropriate Order follows.
s/ Sylvia H. Rambo
United States District Judge
Dated: March 12, 2020