Brown v. Marsh

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GEORGE BROWN, ot Civil No. 3:19-cv-2229

Petitioner . Judge Mariani) FILED

| SCRANTON

V. : OCT 13

SUPERINTENDENT MARSH, ef al., an er

□ DENS

. Ay CLERY

Respondents

MEMORANDUM

Petitioner George Brown (“Brown’) filed the instant petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 challenging a judgment and conviction imposed in the Court

of Common Pleas of Dauphin County, Pennsylvania. (Doc. 1). For the reasons discussed

below, the Court will deny the petition.

I. Background

Brown was charged with robbing and murdering a male victim during the sale of

illegal drugs on December 12, 2013. See Commonwealth v. Brown, 2016 WL 5832197, *1

(Pa. Super. Aug. 30, 2016).. On July 28, 2015, defense counsel filed a timely motion to

suppress Brown’s statements to police during questioning. (See Doc. 9-2). On August 4,

2015, the trial court denied the motion. (See id.). Following a jury trial held from August 17

to 21, 2015, Brown was found guilty of second-degree murder, robbery, conspiracy to

commit robbery, and carrying firearms without a license. Commonwealth v. Brown, No. CP-

22-CR-0004546-2014 (Pa. Ct. Com. Pl. Dauphin Cty.). On October 20, 2015, Brown was

sentenced to life imprisonment on the murder conviction and concurrent terms of 2% to 5

years’ imprisonment on the robbery and conspiracy convictions. (/d.). The trial court

imposed no further penalty on the firearms conviction. (Id.). Brown filed a direct appeal.

Commonwealth v. Brown, 2023 MDA 2015 (Pa. Super.). On August 30, 2016, the

Pennsylvania Superior Court affirmed the judgment of sentence. Id.; see also

Commonwealth v. Brown, 2016 WL 5832197. On March 7, 2017, counsel for Brown filed a

motion to reinstate Brown’s right to petition for allowance of appeal to the Pennsylvania

Supreme Court. See Commonwealth v. Brown, No. CP-22-CR-0004546-2014. On March

28, 2017, the trial court granted the motion. See id. However, a petition for allowance of

appeal was never filed on behalf of Brown. See id. □

Thereafter, Brown pursued relief pursuant to the Post Conviction Relief Act

("PCRA’), 42 PA. CONS. STAT. §§ 9541-9546, seeking a reinstatement of his rights to file a

petition for allowance of appeal with the Supreme Court of Pennsylvania. (See Doc. 9-6).

The PCRA court granted relief regarding the petition for allowance of appeal, and, on

August 19, 2019, the Pennsylvania Supreme Court denied the petition. (See id.; see also

Commonwealth v. Brown, 143 MAL 2019 (Pa. 2019)). In the PCRA petition, Brown also set

forth the following claims: the prosecution failed to inform Brown of plea agreements in

exchange for the testimony of a witness, and trial counsel was ineffective for failing to

investigate forensic evidence to develop impeachment evidence, failing to hire a forensic

expert, failing to preserve a weight to the evidence claim, and failing to file a petition for

□

allowance of appeal. (See Doc. 9-6). The PCRA court found that Brown was not entitled to

relief on these claims. (/d.). Brown failed to further pursue state court remedies and failed

to file an appeal with the Pennsylvania Superior Court with respect to these claims.

Brown then filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254. (Doc. 1).

Il. Habeas Claims Presented for Federal Review

Brown seeks habeas relief based on the following grounds:

A. — Ground One: The trial court erred in failing to suppress his statements to

police officers.

B. | Ground Two: The trial court committed an error of law in allowing the verdict

to stand because the finding of guilt was against the weight of the evidence.

C. Ground Three: The Commonwealth committed a Brady’ violation by failing to

inform him of plea agreements in exchange for the testimony of a witness,

and trial counsel was ineffective for failing to raise a Brady violation.

D. Ground Four: Trial counsel was ineffective for failing to investigate forensic

evidence to develop impeachment evidence and failing to hire a forensic

expert.

(Docs. 1, 14). .

lll. Legal Standards

The statutory authority of federal courts to issue habeas corpus relief for persons in

state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and

‘Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the evidence is material either

to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”).

Effective Death Penalty Act of 1996 (“AEDPA’). A habeas corpus petition pursuant to §

2254 is the proper mechanism for a prisoner to challenge the “fact or duration” of his

confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99, 93 S.Ct. 1827, 36 L.Ed.2d 439

(1973). “[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct.

475, 116 L.Ed.2d 385 (1991). Rather, federal habeas review is restricted to claims based

“on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68.

A. — Exhaustion

Habeas corpus relief cannot be granted unless all available state remedies have

been exhausted, or there is an absence of available state corrective process, or

circumstances exist that render such process ineffective to protect the rights of the

applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on

principles of comity in order to ensure that state courts have the initial opportunity to review

federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178,

192 (3d Cir. 2000).

A state prisoner exhausts state remedies by giving the “state courts one full

opportunity to resolve any constitutional issues by invoking one complete round of the

State's established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845,

119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).2 Respect for the state court system requires that the

petitioner demonstrate that the claims in question have been “fairly presented to the state

courts.” Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989).

To “fairly present” a claim, a petitioner must present its “factual and legal substance to the

state courts in a manner that puts them on notice that a federal claim is being asserted.”

McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999); see also Nara v. Frank, 488 F.3d

187, 197-98 (3d Cir. 2007) (recognizing that a claim is fairly presented when a petitioner

presents the same factual and legal basis for the claim to the state courts). While the

petitioner need not cite “book and verse” of the federal Constitution, Picard v. Connor, 404

U.S. 270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971),.he must “give the State ‘the opportunity

to pass upon and correct’ alleged violations of its prisoners’ federal rights” before presenting

those claims here, Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865

(1995) (quoting Picard, 404 U.S. at 275, 92 S.Ct. 509).

B. Merits Standard

Once a court has determined that the exhaustion requirement is met and, therefore,

that review on the merits of the issues presented in a habeas petition is warranted, the

scope of that review is set forth in 28 U.S.C. § 2254(d). Section 2254(d) provides, in

2 In Pennsylvania, pursuant to Order 218 of the Pennsylvania Supreme Court, review of criminal

convictions and post-conviction relief matters from the Pennsylvania Supreme Court is discretionary and

“unavailable” for purposes of exhausting state court remedies under § 2254. Lambert v. Blackwell, 387

F.3d 210, 233 (3d Cir. 2004). Thus, to exhaust state remedies, a Pennsylvania prisoner need appeal only

to the Pennsylvania Superior Court. .

pertinent part, that an application for a writ of habeas corpus premised on a claim previously

adjudicated on the merits in state court shall not be granted unless:

(1) [the decision] was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States; or

(2) [the decision] was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). To establish that the decision was contrary to federal law “it is not

sufficient for the petitioner to show merely that his interpretation of Supreme Court

precedent is more plausible than the state court’s; rather, the petitioner must demonstrate

that Supreme Court precedent requires the contrary outcome.” Matteo v. Superintendent,

171 F.3d 877, 888 (3d Cir. 1999). Similarly, a federal court will only find a state court

decision to be an unreasonable application of federal law if the decision, “evaluated

objectively and on the merits, resulted in an outcome that cannot reasonably be justified

under existing Supreme Court precedent.” /d.

Further, under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a

state court's findings of fact are correct. A petitioner may only rebut this presumption with

clear and convincing evidence of the state court’s error. Miller-El v. Cockrell, 537 U.S. 322,

341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual

issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual

decisions); Matteo, 171 F.3d at 888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir.

2005). This presumption of correctness applies to both explicit and implicit findings of fact.

Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). Consequently, a habeas petitioner

“must clear a high hurdle before a federal court will set aside any of the state court's factual

findings.” Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001).

Like the “unreasonable application” prong of paragraph (1), a factual determination

should be adjudged “unreasonable” under paragraph (2) only if the court finds that a rational

jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C.

§ 2254(d)(2); Porter v. Horn, 276 F. Supp. 2d 278, 296 (E.D. Pa. 2003); see also Torres v.

Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 316

(1979). “This provision essentially requires the district court to step into the shoes of an

appellate tribunal, examining the record below to ascertain whether sufficient evidence

existed to support the findings of fact material to the conviction.” Breighner Chesney, 301

F. Supp. 2d 354, 364 (M.D. Pa. 2004) (citing 28 U.S.C. § 2254(d)(2) and (f)3). Mere

disagreement with an inferential leap or credibility judgment of the state court is insufficient

to permit relief. Porter, 276 F. Supp. 2d at 296; see also Williams v. Taylor, 529 U.S. 362,

408-09 (2000); Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001). only when the finding

_ lacks evidentiary support in the state court record or is plainly controverted by evidence

3 “If the applicant challenges the sufficiency of the evidence adduced in such State court

proceeding to support the State court's determination of a factual issue made therein, the applicant, □□□□□

shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to

support such determination.” 28 U.S.C. § 2254(f).

therein should the federal habeas court overturn a state court's factual determination.

Porter, 276 F. Supp. 2d at 296; see also Williams, 529 U.S. at 408-09.

Discussion .

A. Ground One

Brown maintains that the trial court erred in failing to suppress statements he made

to investigating police officers in violation of Miranda.‘ The Court finds that the state court's

refusal to suppress Brown's statements did not violate his rights under the Fifth

Amendment, and thus was not contrary to, or an unreasonable application of, clearly

established federal law.

Brown raised this issue on direct appeal. In addressing this claim, the Pennsylvania

Superior Court found as follows:

Brown raises a single issue in this appeal: “Did the trial court commit an error

of law when it denied [Brown's] motion to suppress evidence regarding a

custodial statement to police, as said statement was obtained in violation of

[Brown’s] constitutional right against self-incrimination?” Brief For Appellant,

at 5.

The record supports the following findings of fact made by the trial court:

A suppression hearing was held on August 4, 2015. The first

witness was Detective John O’Connor with the Harrisburg City

Police. In connection with the murder, Detective O’Connor was

assisting multiple detectives with a search warrant for a home

in the 2200 block of Logan Street, which turned out to be

vacant. A neighbor told the detectives that Sam Sims,

4 Miranda v. Arizona, 384 U.S. 436 (1966).

[Brown]’s brother, lived on the 2100 block of North Fourth

Street, and gave them a good description of the home. The

detectives went to the house and were told that [Brown] was__.

not there. [Brown]’s mother and brother were there, and the

detectives told the mother what they knew about the case.

[Brown]’s mother called [Brown] and, while the detectives were

still in the home, [Brown] came back to the house. Detective

O'Connor testified that [Brown] was friendly, sober, talkative,

and willing to help out. Detective O’Connor told [Brown] that

Detective Richard lachini wanted to talk to him about a

homicide and asked if he would be willing to come to the police

station with them. [Brown] said ‘sure.’ Specifically, Detective

[O'Connor] knew that an individual was shot inside of a vehicle

in the 2100 block of North Fourth Street and a cell phone was

recovered in the car next to the victim. The cell phone

belonged to [Brown]. .

Detective O'Connor asked [Brown] if he wanted a ride to the

police station, to which [Brown] replied, ‘sure.’ Detective

O’Connor and Corporal Olivera drove him to the police

department in an unmarked car, with no handcuffs, and no

‘cage’ between the front and back seats. [Brown] sat in the

back seat with Detective O’Connor, and the tone of the trip to

the station was ‘friendly and cordial.’ When they arrived at the

Station, they took [Brown] to a conference room. Besides

[Brown], only Detective O’Connor and Detective lachini were

present. Detective O’Connor testified that the lead detective,

Detective lachini, was the one doing the questioning. After

some initial questioning, Detective lachini started inquiring

about the cell phone, and it was at that point that Detective

O’Connor issued [Brown] his Miranda rights. When asked why

he did not administer [Brown] his rights initially, Detective

O’Connor testified that he ‘felt he was more of a witness than

he was an accused.’ Following the Miranda warnings, [Brown]

indicated that he did not wish to speak any further. The

interview was terminated.

Detective lachini also testified at the suppression hearing. His

testimony was consistent with Detective O’Connor’s testimony.

He stated that ‘the initial questions were kind of just some

background stuff. . . informal. [O]nce | started asking [Brown]

about the phone is when we decided to Mirandize him.’ After

the interview was terminated, Detective lachini made a call to

the District Attorney's Office and the District Attorney told him to

release [Brown] at that point.

Pa.R.A.P. 1925 Opinion, at 2-3. .

The Commonwealth contends that the suppression record demonstrates, and

the trial court properly found, that Brown was not in custody, and therefore the

trial court properly denied Brown's motion to suppress. We agree. “A person

is in custody for Miranda purposes only when he is physically denied his

freedom of action in any significant way or is placed in a situation in which he

reasonably believes that his freedom of action or movement is restricted by

the interrogation.” Commonwealth v. Johnson, 727 A.2d 1089, 1100 (Pa.

1999). The United States Supreme Court has elaborated that, in determining

whether an individual is in custody, the “ultimate inquiry is . .. whether there

[is] a formal arrest or restraint on freedom of movement of the degree

associated with a formal arrest.” Stansbury v. California, 511 U.S. 318, 322

(1994). The question of custody is an objective one, focusing on the totality

of the circumstance, with due consideration given to the reasonable

impression conveyed upon the person being questioned. Commonwealth v.

Gwynn, 723 A.2d 143, 148 (Pa.1998), cert. denied, 528 U.S. 969 (1999).

Pennsylvania courts have held multiple times that a suspect is not in custody

when he voluntarily accompanies officers to the police station and answers

their questions under non-coercive circumstances. See Commonwealth v.

Luster, 71 A.3d 1029, 1051 (Pa. 2013) (murder defendant was not subject to

“custodial interrogation” for Miranda purposes when he spoke to officer in

police car; defendant voluntarily accompanied officer to state police barracks

for questioning regarding victim's death, defendant was not handcuffed and

was accompanied by his sister, and defendant initiated conversation with

officer regarding events of prior evening); Commonwealth v. Freeman, 128

A.3d 1231, 1241 (Pa. Super. 2015) (murder defendant was not in custody,

and thus Miranda warnings were not required, when he made statements to

detectives regarding his involvement in home invasion, kidnapping, and

murder; defendant voluntarily accompanied detectives to police station;

detectives did not show, use, threaten to use force, transfer defendant against

his will, or restrain defendant; detectives were dressed in formal business

attire, drove unmarked sedan, had their firearms concealed, and reminded

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defendant multiple times that he was not under arrest and was free to leave at

any time).

Here, Brown came into contact with detectives at his home, where his mother

had allowed a consensual search of the premises. The detectives introduced

themselves and had a cordial, friendly conversation with Brown. They

informed Brown that the lead detective in the matter wanted to speak with him

about a homicide and asked him if he was willing to come to the police

station. This was a request, not a demand. Brown voluntarily agreed to

accompany the officers to meet with Detective lachini at the police station.

The detectives offered to give Brown a ride to the station, and Brown

voluntarily accepted their offer. He was not placed in handcuffs, he entered

the car of his own volition, and there was no cage in the car. His movement

and freedom were not restricted in any way. Upon arrival at the police

station, Brown voluntarily exited the car and walked into the conference room.

The tone was friendly and cordial. When the interview turned to the fact that

Brown's cell phone was in the car, the detectives gave Brown Miranda

warnings. He invoked his rights, the interview stopped, and Brown walked

out of the police station. As in Luster and Freeman, Brown was not in

custody during the interview. Indeed, he was not in custody after issuance of

Miranda warnings, because he promptly stated that he did not wish to speak

further and left the police station.

While Brown labels his encounter with the detectives as an “interrogation”, the

fact remains that Brown consented to the interview and never had his

freedom restricted. Brown argues that because the police contacted the

District Attorney's office for direction on whether to charge Brown, he

therefore was in custody. However, that is not part of the analysis. The

District Attorney's opinion as to whether there was enough evidence to

charge Brown is not relevant to whether the detectives restricted Brown’s

freedom of movement in a manner such that a reasonable person would not

have felt free to leave. Because the detectives never restricted Brown's

freedom of movement or threatened or coerced him in any way, he was never

in custody, and his statements to the detectives were not subject to

suppression.

For these reasons, the trial court properly denied Brown’s motion to suppress.

Judgment of sentence affirmed. .

11

Commonwealth v. Brown, 2016 WL 5832197, *1-3 (Pa. Super. Aug. 30, 2016) (footnotes

omitted).

When presented with the facts of this claim, the state courts concluded that Brown

was not entitled to relief. A suppression hearing was held before the trial court and the

court found that Brown was not under a custodial detention based on the following facts.

The two investigating officers located Brown at his brother’s house and asked if they could

question him about a homicide. Brown agreed to accompany them to the police station. He

was never handcuffed and was never told that he was under arrest. When they arrived at

the police station, Brown voluntarily exited the car. The same two investigating officers

questioned Brown in a conference room. When the officers began questioning Brown about

a cell phone that was in the car with the homicide victim, the detectives gave Brown

Miranda warnings. Brown invoked his rights, the interview stopped, and he walked out of

the police station.

The trial court found that based on the totality of the circumstances, the interview of

Brown was not a custodial interrogation and the Superior Court affirmed. In reaching this

determination, the state courts determined that Brown willingly and voluntarily accompanied

the police to the station, he left the station without restrictions after he informed police that

he no longer wished to speak to them, the police did not use any restraints or threats, and

the conversation was friendly and cordial. Therefore, the state courts properly found that

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Miranda warnings were not required, and that the trial court did not err in not suppressing

the statements.

Miranda serves to exclude from trial statements made by a defendant during

a custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). Thus, an

individual’s Miranda rights apply only when that individual is “in custody” and subjected to

“interrogation.” illinois v. Perkins, 496 U.S. 292, 296 (1990). In determining “whether an

individual is in custody, the ultimate inquiry is ‘whether there is a formal arrest or restraint on

freedom of movement’ of the degree associated with a formal arrest.” Reinert v. □

Larkins, 379 F.3d 76, 86 (3d Cir. 2004) (quoting California v. Beheler, 463 U.S. 1121, 1125

(1983) (internal quotation omitted)). When the individual has not been openly arrested

when the statements are made, “something must be said or done by the authorities, either

in their manner of approach or in the tone or extent of their questioning, which indicates they

would not have heeded a request to depart or to allow the suspect to do so.” /d. (quoting

Steigler v. Anderson, 496 F.2d 793, 799 (3d Cir. 1974) (internal quotation omitted)).

“Interrogation” for Miranda purposes includes those words and actions “that the police

should know are reasonably likely to elicit an incriminating response.” Rhode Island v. □

Innis, 446 U.S. 291, 301 (1980).

Here, Brown was not subjected to the type of custodial interrogation that triggers

Miranda. Brown was not under arrest. He voluntarily accompanied police to the station, he

was not placed in handcuffs, he entered the car on his own volition, there was no cage in

13 .

the car, he voluntarily exited the car at the station and walked into the conference room, the

officers never indicated that Brown was under arrest, and he freely walked out of the police

station. Moreover, there is no evidence to suggest that Brown was restrained in any way

from breaking off the encounter, let alone restrained to a degree associated with a formal

arrest. The state courts’ decisions were neither contrary to, nor involved an unreasonable

application of clearly established federal law as determined by the Supreme Court of the

United States. Further, the decisions were not based on an unreasonable determination of

the facts in light of the evidence. Accordingly, the Court will deny this claim.

B. Grounds Two, Three, and Four

To properly exhaust his state remedies, Brown was required to fairly present his

claims to the state court, either on direct appeal or by collateral review. See Castille, 489

U.S. at 349-50; Blasi v. Attorney General of Pa., 30 F. Supp. 2d 481, 487 (M.D. Pa. 1998).

As stated supra, the Pennsylvania Superior Court noted that Brown only raised “a single

issue” on appeal: “Did the trial court commit an error of law when it denied [Brown’s] motion

to suppress evidence regarding a custodial statement to police, as said statement was

obtained in violation of [Brown’s] constitutional right against self-incrimination?”

Commonwealth v. Brown, 2016 WL 5832197, at *1. It is quite clear that Brown failed to

raise grounds two, three, and four—a weight of the evidence claim, that the prosecution

committed a Brady violation, and that trial counsel was ineffective—in his direct appeal. It is

also clear that Brown did not complete his collateral review proceedings with respect to

14

these claims. These claims are thereby defaulted. See Coleman v. Thompson, 501 US.

722, 750 (1991); Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996) (concluding, “if the

final state court presented with a federal claim refuses to decide its merits based on an

established state rule of law independent of the federal claim and adequate to support the:

refusal, federal habeas review is foreclosed”).

Brown’s failure to timely and properly pursue these claims at the state level

constitutes an independent and adequate state ground sufficient to support a procedural

default of the claim. See Barnhart v. Kyler, 318 F. Supp.2d 250 (M.D. Pa. 2004). Brown is

entitled to federal habeas review of these claims unless he can meet his burden of

establishing “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 would result in a fundamental

miscarriage of justice.” Coleman, 501 U.S. at 750; Norris v. Brooks, 794 F.3d 401, 404 (3d

Cir. 2015). Brown fails to acknowledge his procedural default of these claims and fails to

allege any cause and prejudice to excuse it. (See Docs. 1, 14; see also Teague v. Lane,

489 U.S. 288, 298 (1989) (holding that the petitioner’s failure to allege cause for his default

precluded federal habeas review of a defaulted claim)). Nor is there any indication that a

failure to review these claims will result in a fundamental miscarriage of justice.

Consequently, Brown is precluded from pursuing federal habeas corpus relief with regard to

- the claims raised in grounds two, three, and four. .

15

Furthermore, with respect to grounds two, three, and four, any attempt by Brown to

exhaust his state remedies at this time would be futile because these claims are

procedurally defaulted due to waiver of the claims and expiration of the PCRA statute of

limitations. See 42 PA. CONS. STAT. § 9544(b) (“For purposes of this subchapter, an issue

is waived if the petitioner could have raised it but failed to do so before trial, at trial, during

unitary review, on appeal or in a prior state postconviction proceeding’); 42 PA, CONS.

STAT. § 9545(b) (“Any petition under this subchapter, including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes final”). Because

Brown is in procedural default for failing to comply with the state filing requirements, the

merits of grounds two, three, and four—the weight of the evidence claim, the Brady violation

claim, and the ineffective assistance of trial counsel claims—need not be considered here.

See Coleman, 501 U.S. at 750,

V. Certificate of Appealability .

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. ACOA 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 □

16

adequate to deserve encouragement to proceed further.” Miller-E/ v. Cockrell, 537 U.S.

322, 327 (2003). Additionally, as the Supreme Court has explained,

[w]hen 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). Brown fails to demonstrate that a certificate

of appealability should issue.

Vi. Conclusion

The Court will deny the petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254. A separate Order shall issue.

A oO

Robert D. Mariani’ ~~

United States District Judge

_ Dated: October _/ 2 2022

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