The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
NOEL BROWN, : CIVIL ACTION NO. 4:19-1230
Petitioner
: (Judge Mannion)
v.
:
COMMONWEALTH OF
PENNSYLVANIA, et al., :
Respondents :
M E M O R A N D U M1
Pending before the court is Magistrate Judge William I. Arbuckle’s Report
and Recommendation (“R&R”) suggesting the denial of Petitioner Noel Brown’s 28
U.S.C. §2254 petition for a writ of habeas corpus. The petition challenges Brown’s
(“Petitioner”) November 2016 criminal conviction in the Wayne County Court of
Common Pleas. Petitioner has filed objections to the R&R. For the reasons that
follow, we find that R&R will be ADOPTED.
1 This matter has been reassigned to the undersigned following the passing of
our colleague, the Honorable James M. Munley, in March of this year.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Pennsylvania Superior Court described the background of this case in
an October 2017 opinion affirming Petitioner’s conviction as follows:
The record reveals that on June 29, 2016, A.C., the fifteen-year-old
victim in this case, was reported as a runaway. Affidavit of Probable
Cause, 7/7/16, at 1. A.C. had answered an online advertisement
seeking escorts and strippers. Id. On that day, A.C. left her mother’s
house with Appellant. Id. By tracking A.C.’s cellular telephone,
Pennsylvania State Police were able to locate A.C. at a local motel. Id.
When the police arrived, they noticed that A.C. appeared intoxicated;
A.C. stated that Appellant had given her vodka. Id. The troopers
transported A.C. to the State Police barracks and questioned her
regarding the events of the prior evening. Id. A.C. told the troopers that
she had answered an online advertisement for escorts, and Appellant
picked her up and drove her to the motel. Id. At the motel, Appellant
provided A.C. with liquor, and A.C. fell asleep. Id. Police discovered
that after A.C. fell asleep, Appellant undressed A.C., exposed her
breasts, took a photograph of the minor’s breasts, and placed the
photograph online in an effort to utilize A.C. as a prostitute. Id. Police
also recovered a document signed by A.C. wherein she agreed to work
for Appellant, and Appellant would act as her pimp. Id.
Police arrested Appellant and charged him with numerous crimes in
connection with the aforementioned events. At the preliminary hearing
before a magisterial district judge, there was a colloquy consistent with
Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998), and a thorough
discussion of the factors outlined in Pa.R.Crim.P. 121(A)(2) concerning
pro se representation. N.T., 7/18/16, at 8. At the subsequent hearing
on pretrial motions, Appellant informed the trial court that he remained
steadfast in his desire to represent himself. N.T., 10/3/16, at 4. The trial
court questioned Appellant, urged him to retain counsel, and informed
Appellant that the court would appoint counsel. Id. Appellant reiterated
that he would not accept counsel and would represent himself. Id. The
trial court ultimately permitted Appellant to proceed pro se, but the trial
court appointed standby counsel. Id. Following a jury trial, Appellant
was found guilty of interference with custody of children, dissemination
of photos of child sex acts, corruption of minors, furnishing liquor to
minors, and trafficking in minors.
On February 3, 2017, the trial court sentenced Appellant to an
aggregate term of 180 to 384 months of incarceration. Appellant filed
post-sentence motions that were denied, and on February 9, 2017,
Appellant filed a timely appeal. Throughout the proceedings Appellant
remained pro se.
Commonwealth v. Brown, No. 649 EDA 2017, 2017 WL 4772761, at *1-2 (Pa.
Super. Ct. Oct. 23, 2017) (internal footnotes omitted).
II. STANDARD OF REVIEW
In disposing of objections to a magistrate judge’s report and
recommendation, the district court must make a de novo determination of those
portions of the report against which objections are made. 28 U.S.C. §636(b)(1)(c);
see also Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983). The court may
accept, not accept, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge. Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir.
1987). The district court judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions. Id.
For portions of the R&R which are not objected to, the court must determine
if a review of the record evidences plain error or manifest injustice. FED. R. CIV. P.
72(b) 1983 Advisory Committee Notes (“When no timely objection is filed, the court
need only satisfy itself that there is no clear error on the face of the record to accept
the recommendation”); see also 28 U.S.C. §636(b)(1); Sullivan v. Cuyler, 723 F.2d
1077, 1085 (3d Cir. 1983).
Here, the R&R addresses a petition for a writ of habeas corpus filed pursuant
to 28 U.S.C. §2254. Section 2254 provides as follows:
(a) The Supreme Court, a Justice thereof, a circuit court judge,
or a district court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
(b) (1) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted unless it appears that –
(A) the applicant has exhausted the remedies available in the
courts of the State;
. . .
(2) An application for a writ of habeas corpus may be denied on
the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the court of the state.
28 U.S.C. §2254.
Thus substantive and procedural requirements are provided by §2254.
Specifically, the Petitioner must allege he is in custody in violation of the
Constitution or laws of the United States, and he must have exhausted his State
court remedies. Id. Bearing these standards in mind, we now turn to the R&R and
objections thereto.
III. Discussion
Before addressing the merits of the petition, it is important to determine
whether the Petitioner has exhausted his state court remedies. 28 U.S.C.
§2254(b)(1). The R&R points out that the Respondent concedes that the Petitioner
has fully exhausted his claims. (See Doc. 17 at ¶ 5). None of the state appellate
courts, however, addressed the merits of the Petitioner’s claims. For example, the
Superior Court concluded that Petitioner’s direct appeal flings consisted of “a
nonsensical invective on the proceedings in the trial court.” Commonwealth v.
Brown, No. 649 EDA 2017, 2017 WL 4772761 at *2 (Pa. Super. Ct. Oct. 23, 2017).
The court dismissed the appeal “[d]ue to the overwhelming deficiencies in
Appellant's brief, we conclude that Appellant has waived his issues on appeal.” Id.
Petitioner filed an untimely appeal to the Pennsylvania Supreme Court, and the
court did not grant him leave to file it nunc pro tunc. Thus, the Pennsylvania
Supreme Court did not address the merits of his claims either. (Doc. 17-8).
Petitioner then filed a motion under the Pennsylvania Post Conviction Relief
Act (“PCRA”) which the trial court denied. (Doc. 17-10, 17-11). Upon appeal, the
Pennsylvania Superior Court found that Petitioner had failed to comply with
numerous appellate procedural rules and that he “failed to develop any issue in
any meaningful fashion capable of review. Accordingly, we dismiss this appeal.”
Commonwealth v. Brown, No. 2388 EDA 2019, 2020 WL 1461011 at *3 (Mar. 24,
2020).
Thus, instead of addressing the merits, the appellate courts dismissed his
appeals on procedural grounds. Where the state court fails to address the merits
a Petitioner’s claims due to the Petitioner’s failure to follow a procedural rule, the
claims are considered procedurally defaulted. Under the rules of procedural default
“a federal court will not review the merits of claims, including constitutional claims,
that a state court declined to hear because the prisoner failed to abide by a state
procedural rule.” See Martinez v. Ryan, 566 U.S. 1, 9 (2012). Federal review of
procedurally defaulted claims “is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(1991). Here, Petitioner has not presented any excuse or justification for his failure
to follow the state procedural rules and thus he has not established cause.
Additionally, as pointed out by the R&R, none of the issues Petitioner raises has
merit, thus he has not established prejudice. The Petitioner also has not
established a fundamental miscarriage of justice.
The R&R breaks the petition down into four issues: 1) Jurisdiction and
Venue; 2) Eighth Amendment - Cruel and Unusual Punishment; 3) Ineffective
Assistance of Counsel; and 4) Composition of the Jury/ Due Process. The R&R
finds no merits to any of the issues raised, and the petitioner objects. We will
address each issue separately.
A. Jurisdiction and Venue
The petitioner challenges the jurisdiction and venue of his criminal case
which was tried in the Wayne County Pennsylvania Court of Common Pleas. The
R&R properly explains that the courts of common pleas have original subject
matter jurisdiction over controversies arising from violation of the Pennsylvania
Crimes Code. See Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003).
Further, the court had personal jurisdiction over the Petitioner as he was domiciled
in the Commonwealth. 42 PA. CONS. ST. §5301 (providing for personal jurisdiction
in the Pennsylvania courts for those domiciled in the Commonwealth). These
conclusions are correct, and they will be adopted.
With regard to venue, the R&R indicates that venue is properly brought in
the county where the crime occurred. But where a series of criminal acts occur in
two counties as part of the same criminal episode, venue is proper in either county.
PA. R. CRIM. P. 130(A)(3) and PA. R. CRIM. P. 555; 42 PA. CONS. STAT. §5106. This
summary of the law is accurate and will be adopted.
The R&R applies the law to petitioner’s case in the following manner:
Petitioner was arrested in Monroe County, where criminal activity occurred with
the victim. He was tried, however, in Wayne County. The R&R indicates that this
county is an appropriate venue because it is where he met the victim before driving
her to Monroe County. Petitioner “STRONGLY OBJECTS” to this as
“speculation/opinion without any evidence.” (Doc. 27, Objections at 4). The trial
transcript, however, supports the R&R’s analysis. According to the transcript, the
minor victim lived in Honesdale, Wayne County, Pennsylvania, and petitioner
picked her up there after she responded to an online advertisement seeking
escorts. He transported her to Monroe County, Tannersville area, where the crimes
continued. (Doc. 17-1, Notes of Trial Testimony (“N.T.”) Nov. 7, 2016 at 9-13, 16;
Doc. 17-3, N.T. Nov. 7, 2016 at 80-83). Petitioner’s objection is thus wholly without
merit and will be overruled.
B. Cruel and Unusual Punishment
Next, the R&R addresses the issue of Eighth Amendment Cruel and Unusual
Punishment. The R&R points out that the petition does not raise any proper cruel
and unusual claims. The Eighth Amendment prohibits a prison official from
exhibiting “deliberate indifference” to a substantial risk of serious harm to an
inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). Petitioner raises no such
issue in the instant case. In his objections to support the Eighth Amendment claim,
petitioner mentions such matters as high bail, being shackled with chains prior to
trial in view of prospective jurors, witness tampering, the court’s ruling on a motion
in limine and the question of losing most objections at trial to preserve an appeal
issue. (Doc. 27, Objections at 6). None of these matters are proper Eighth
Amendment issues and the R&R will be adopted on the Eighth Amendment
analysis.2
C. Ineffective Assistance of Counsel
The third issue addressed by the R&R is whether the defendant properly
alleged ineffective assistance of counsel. Here, petitioner is not entitled to relief on
a claim of ineffective assistance of counsel. He proceeded pro se at trial and direct
appeal. On the appeal of his PCRA motion he was represented for a period time.
From his objections, it is apparent that Petitioner complains of his PCRA counsel’s
ineffectiveness. (Doc. 27, Objections at 7).
To establish ineffectiveness of counsel, the petitioner must establish the
following two factors: 1) performance of counsel fell below an objective standard
of reasonableness; and 2) that but for counsel’s errors, the result of the underlying
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687-88 (1984).
2 Further, these issues are not fully addressed by the petitioner, they are merely
listed. A habeas petition must “specify all the grounds for relief available to the
petitioner and state the facts supporting each ground.” Mayle v. Felix, 545 U.S.
644,655 (2005) (citing Habeas Corpus Rule 2(c)). Accordingly, raising these
issues in the objections is not an appropriate response to the R&R.
The Pennsylvania Superior Court explained petitioner’s PCRA counsel’s
performance as follows:
On October 25, 2018, Appellant timely filed the instant PCRA
petition. Counsel was appointed and, following investigation of
Appellant’s numerous claims, counsel filed a no-merit letter and motion
to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc). On May 1, 2019, the PCRA court issued notice of its intent
to dismiss Appellant’s petition without a hearing pursuant to
Pa.R.Crim.P. 907, and granted counsel’s motion to withdraw.
Commonwealth v. Brown, No. 2388 EDA 2019, 2020 WL 1461011, *2 (Pa. Super.
Ct. Mar. 24, 2020).
The instant petition and objections to the R&R fall well below ineffectiveness
of counsel standard. Although it is difficult to discern exactly what petitioner is
complaining of, it appears that he and his counsel disagreed upon the issues to be
presented to the court. Petitioner does not set forth exactly what PCRA counsel’s
errors were and how he was prejudiced, especially in light of the fact that he
ultimately represented himself in his PCRA appeal.
Moreover, The United States Supreme Court has explained that: “There is
no constitutional right to an attorney in state post-conviction proceedings.
Consequently, a petitioner cannot claim constitutionally ineffective assistance of
counsel in such proceedings.” Coleman v. Thompson, 501 U.S. 722, 752 (1991)
(internal citations omitted). Accordingly, the objections on this point will be
overruled.
D. Jury issues
The final issue addressed by the R&R involves jury issues. Petitioner
complains about the composition of the jury pool and also about the prosecution’s
use of peremptory challenges during jury selection. The R&R suggests each claim
should be denied. We agree and while the petitioner tends to inappropriately blend
these two issues into one issue, will address them separately.
1. Composition of the jury pool3
Petitioner first complains about the composition of the jury pool. He states:
“Petitioner is a member of a religious and ethnic group that is capable of being
singled out for differential treatment, and members of the petitioners [sic] race were
under-represented on the venire from which the petitioner [sic] jury was drawn, and
that the venire was selected under a practice providing the opportunity for
discrimination.” (Doc. 23, 3-4). According to the petitioner, “the jury pool was under
represented of African American individuals.” (Doc. 27 at 9). Petitioner does
concede that one of the potential jurors was non-white to his “best knowledge and
visual opinion.” (Doc. 27 at 9).
The law provides that:
3 The R&R indicates that the Petitioner has not presented this issue to the state
courts. It appears, however, that in Petitioner’s supplemental brief in support of
PCRA he has raised the issue. (Doc. 17-5 at 12). Regardless, the Court agrees
with the conclusion that the claim should be dismissed.
Under the Sixth Amendment, a criminal defendant is entitled to a trial
by an “impartial” jury. One important step in furthering impartiality is to
draw jurors from diverse segments of the population. The Supreme
Court has declared this method a constitutional guarantee by
concluding that the selection of a petit jury from a representative cross
section of the community is an essential component of the Sixth
Amendment right to a jury trial.
United States v. Savage, 970 F.3d 217, 252 (3d Cir. 2020) (internal citations,
quotation marks and footnotes omitted).
To establish a violation of his Sixth Amendment right to a jury which
represents a fair cross section of the community, a defendant must establish the
following:
(1) the group alleged to be excluded is a “distinctive” group in the
community; (2) the representation of this group in jury venires is not
“fair and reasonable” in relation to the number of such persons in the
community; and (3) the underrepresentation is caused by the
“systematic exclusion of the group in the jury selection process.” Duren
v. Missouri, 439 U.S. 357, 364 (1979)
United States v. Weaver, 267 F.3d 231, 237 (3d Cir. 2001).
Here, the petitioner has not established these factors. He makes merely
general boilerplate allegations. No evidence is provided regarding the relationship
of the number of African Americans in the jury venire in relation to the number of
such persons in the Wayne County Community. Thus, section 2254 relief is not
available on this ground, and his objection to the R&R will be overruled.
2. Peremptory challenges
Next, Petitioner complains of the prosecution’s use of peremptory
challenges. In Baston v. Kentucky, 476 U.S. 79 (1986), the United States Supreme
Court held that peremptory strikes in jury selection cannot be made solely on the
basis of race. To establish a Baston claim:
First a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race. Second, if that
showing has been made, the prosecution must offer a race-neutral
basis for striking the juror in question. Third, in light of the parties’
submissions, the trial court must determine whether the defendant has
shown purposeful discrimination.
Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003) (citations omitted).
Petitioner does not identify anyone of his race who was stricken from the jury
peremptorily on the basis of race. He points out that a Latino was removed from
the jury due to the fact that he knew the prosecutor. (Doc. 23 at 4). This assertion
falls well short of establishing that any African American jurors were peremptorily
stricken on the basis of race. Petitioner’s Baston claim is lacking in merit and the
recommendation that it be denied will be adopted.
E. Certificate of Appealability
The final issue addressed by the R&R is whether a certificate of appealability
should be granted. The R&R recommends that it should not.
Pursuant to 28 U.S.C. §2253(c), unless a circuit justice or judge issues a certificate
of appealability (“COA”), an appeal may not be taken from a final order in a
proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant has
made a substantial showing of the denial of a constitutional right. 28 U.S.C.
§2253(c)(2). “A petitioner satisfies this standard by demonstrating 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 (2003).
Here, jurists of reason would not disagree with the Court’s resolution of Petitioner’s
claims. Accordingly, no basis exists for the issuance of a COA.
IV. CONCLUSION
Based upon the above reasoning, we find that Petitioner’s objections to the
R&R should be overruled and the R&R should be adopted. Additionally, we will
decline to issue a certificate of appealability. An appropriate order follows.
s/Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: October 19, 2020
19-1230-01