The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NAFIS ANTUAN FAISON, :
Petitioner, :
: No. 1:18-cv-2453
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 January 14, 2020 Report and
Recommendation (Doc. No. 23) recommending that Petitioner’s § 2254 petition be
denied and that his motions be dismissed as moot, and Petitioner’s objections (Doc.
No. 26) 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 one count of possession with the intent to deliver a controlled
substance, one count of possession of a controlled substance, and one count of
possession of drug paraphernalia. 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. 23 at 2-4.) Petitioner was
sentenced to a total of twenty-two (22) to forty-four (44) months’ 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. Petitioner was denied effective assistance of counsel because trial
counsel failed to investigate and acquire GPS information that would
have proven that his arrest was unlawful;
2. Petitioner was denied effective assistance of counsel because trial
counsel failed to file a motion to suppress the affidavit of probable
cause that provided the basis for his arrest when the affidavit contained
knowingly false material information;
3. Petitioner was denied effective assistance of counsel because, at the
suppression hearing, trial counsel failed to present GPS tracking
evidence clearly showing that it was impossible for him to have been
present at the controlled buy; and
4. Petitioner was denied effective assistance of counsel because trial
counsel failed to revisit the motion to suppress after the state court
acknowledged that he was not present at the controlled buy.
(Doc. No. 22 at 5.) 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 12-
16.) 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 16-24.)
In his objections, Petitioner challenges factual statements made by Magistrate
Judge Mehalchick in her Report and Recommendation. Specifically, Petitioner
maintains that a correct reading of the PCRA court’s opinion indicates that GPS data
“exonerated Petitioner of being present at the apartment” during a drug transaction.
(Doc. No. 26 at 3.) Petitioner asserts that “[t]his factual finding should have been
given deference, but was not.” (Id. (emphasis omitted).) Petitioner argues that the
Superior Court of Pennsylvania “clearly ignored the fact that the PCRA court took
judicial notice of the GPS records [at an office the record hearing] that did not place
Petitioner at the apartment during the controlled buy.” (Id. at 4.)
Petitioner also maintains that Magistrate Judge Mehalchick “erred by
unreasonably applying the law when determining that police had probable cause to
still arrest Petitioner even absent evidence that he was at [the] earlier controlled
buy.” (Id.) Specifically, Petitioner argues that there was no probable cause to arrest
him because he was not observed committing any crime and “because there was no
evidence that [he] was engaged in criminal activity.” (Id. at 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 above, Petitioner objects to Magistrate Judge Mehalchick’s factual
determinations as well as her application of the relevant law underlying all four (4)
grounds for relief. Essentially, Petitioner maintains that GPS data would have
indicated that he was not present at the time of the controlled buy in the apartment.
Petitioner, therefore, argues that this data would have demonstrated that officers had
no basis upon which to detain and, ultimately, arrest him. For the reasons set forth
below, the Court finds Petitioner’s objections to be meritless.
“When a police officer has ‘a reasonable articulable suspicion that criminal
activity is afoot,’ he or she may conduct a ‘brief, investigatory stop.’” United States
v. Whitfield, 634 F.3d 741, 744 (3d Cir. 2010) (quoting Illinois v. Wardlaw, 528 U.S.
119, 123 (2000)). This “reasonable suspicion” requires less than probable cause, but
there must exist “at least a minimal level of objective justification for making the
stop.” Wardlaw, 528 U.S. at 123. Factors considered by the courts to determine
whether reasonable suspicion existed include: “whether the area is a high-crime area,
a suspect’s ‘nervous, evasive behavior,’ and flight from police officers.” Whitfield,
634 F.3d at 744 (quoting Wardlaw, 528 U.S. at 124). A suspect may not have “done
or is doing anything illegal; reasonable suspicion may be ‘based on acts capable of
innocent explanation.’” Id. (quoting United States v. Valentine, 232 F.3d 350, 356
(3d Cir. 2000)). The existing circumstances, though, “must raise a suspicion that the
particular individual being stopped is engaged in wrongdoing.” United States v.
Cortez, 449 U.S. 411, 418 (1981).
Probable cause, however, “exists whenever reasonably trustworthy
information or circumstances within a police officer’s knowledge are sufficient to
warrant a person of reasonable caution to conclude that an offense has been
committed by the person being arrested.” United States v. Myers, 308 F.3d 251, 255
(3d Cir. 2002) (quoting United States v. Glasser, 750 F.2d 1197, 1206 (3d Cir.
1984)). Moreover, “a warrantless arrest by a law officer is reasonable under the
Fourth Amendment where there is probable cause to believe that a criminal offense
has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).
“While probable cause to arrest requires more than mere suspicion, the law
recognized that probable cause determinations have to be made on the spot under
pressure and do not require the fine resolution of conflicting evidence.” Paff v.
Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000) (internal quotation marks omitted).
Moreover, “an arrest is lawful if the officer had probable cause to arrest for any
offense, not just the offense cited at the time of arrest or booking.” Dist. of Columbia
v. Wesby, 138 S. Ct. 577, 584 n.2 (2018). Probable cause “requires only a probability
or substantial chance of criminal activity, not an actual showing of such activity.”
Id. at 586. “Whether probable cause exists is an objective determination based on
the totality of the circumstances present at the time of the challenged governmental
conduct.” United States v. Parker, No. 1:19-cr-227, --- F. Supp. 3d ----, 2020 WL
2098270, at *3 (M.D. Pa. May 1, 2020).
As noted above, Petitioner essentially asserts that because GPS data would
have indicated that he was not in the apartment at the time of the controlled buy,
police officers had no reason to detain and, ultimately, arrest him. The Court,
however, finds the following analysis by the Superior Court of Pennsylvania to be
instructive:
In its opinion, the suppression court relied on the following
factors in finding reasonable suspicion:
After the CI Deal, [Detective] Diaz observed Peterson[1]
and [Petitioner] converse outside of the apartment. This
shows an association between Peterson and [Petitioner].
Diaz later observed what he suspected was [Petitioner]
handing currency to Peterson. The sale of cocaine to the
CI, the presence of [Petitioner] during the sale, the
movement of various people in and out of the apartment,
[Petitioner’s] conversations with Peterson and [Petitioner]
handing money to Peterson provided the police with
reasonable suspicion that [Petitioner] was engaged in the
sale of drugs.
Opinion and Order, 1/14/15, at 5. Moreover, we note that during the
suppression hearing, the police officer who observed [Petitioner] noted
that the Bridge Street apartment is located in a high crime area, and
there were specific complaints about the sale of narcotics at that
location. N.T. (Suppression), 12/1/18, at 11-12. Reasonable suspicion
is a less stringent standard than that required for probable cause.
Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010). “In order to
demonstrate reasonable suspicion, the police officer must be able to
point to specific and articulable facts and reasonable inferences drawn
from those facts in light of the officer’s experience. Commonwealth v.
Cook, 735 A.2d 673, 677 (Pa. 1999).
Given the facts as set forth by the detective surveilling
[Petitioner], even if [Petitioner] had been able to produce “viable GPS
evidence” establishing that [he] was not in the Bridge Street apartment
at the time of the controlled buy, that fact does not exonerate him nor
does it prove that the police did not have reasonable suspicion to detain
him. Indeed, as the PCRA court stated, “[The suppression court]
determined that the officers did have reasonable suspicion to detain
1 Peterson is the individual who sold the drugs to the CI.
[Petitioner] in the Family Dollar parking lot outside any authority
granted by the search warrant.” Trial Court Opinion, 1/30/18, at 6. The
suppression court’s determination was affirmed by this Court on direct
appeal. Faison, 1442 MDA 2015 (unpublished memorandum).
Appellant’s counsel, therefore, was not ineffective for failing to raise a
meritless claim.
(Doc. No. 21-2 at 27-29.) Upon review of the record, the Court concludes that the
Superior Court’s determination regarding reasonable suspicion was neither contrary
to or involved an unreasonable application of Federal law nor was an unreasonable
determination of the facts.
Petitioner also asserts that Magistrate Judge Mehalchick “unreasonably
appl[ied] the law when determining that police had probable cause to still arrest
Petitioner even absent evidence that was at [the] earlier controlled buy.” (Doc. No.
26 at 4.) The Court disagrees. Even if GPS data established that Petitioner was not
present during the controlled buy, the record still reflects that officers observed
heavy foot traffic at the Bridge Street apartment indicative of drug trafficking;
observed Peterson and Petitioner conversing outside the apartment; saw Petitioner
hand currency to Peterson; and saw Petitioner leave the apartment. While Petitioner
is correct that “[m]ere presence at a given location cannot in and of itself constitute
probable cause to arrest,” United States v. Butts, 704 F.3d 701, 704 (3d Cir. 1983),
Magistrate Judge Mehalchick correctly noted that probable cause exists if “at the
moment the arrest was made . . . the facts and circumstances within [officers’]
knowledge and of which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing” that a crime had been committed.
See Hunter v. Bryant, 502 U.S. 224, 228 (1991) (quoting Beck v. Ohio, 379 U.S. 89,
91 (1964)). Moreover, a resulting arrest, search, and seizure of evidence is valid
even where an understandable mistake is made and the arrest is a reasonable
response to the situation. See California v. Hill, 401 U.S. 797, 804-05 (1971). Upon
review of the record, the Court finds that Magistrate Judge Mehalchick correctly
conclude that, notwithstanding Petitioner’s reliance on the GPS data, Petitioner has
not demonstrated that, at the time of his arrest, it was unreasonable for officers to
believe that he was present in the apartment at the time of the controlled buy. (Doc.
No. 23 at 21-23.)
Having considered Petitioner’s objections, the Court concludes that
Magistrate Judge Mehalchick correctly concluded that Petitioner has not
demonstrated any prejudice from trial counsel’s failure to present GPS data
indicating that Petitioner was not present during the controlled buy. Accordingly,
Petitioner’s objections will be overruled, and the Court will adopt Magistrate Judge
Mehalchick’s Report and Recommendation.
IV. CONCLUSION
For the foregoing reasons, the Court will overrule Petitioner’s objections
(Doc. No. 26) and adopt the Report and Recommendation (Doc. No. 23). 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: August 7, 2020