Brown v. Harry

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAVID M. BROWN, :

Petitioner :

: No. 1:22-cv-0115

v. :

: (Judge Rambo)

LAUREL HARRY, :

Respondent :

MEMORANDUM

Petitioner David M. Brown initiated the above-captioned pro se action by

filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Brown

challenges his 2013 Pennsylvania convictions for felon in possession of a firearm,

receiving stolen property, and drug possession. Because Brown’s habeas claims are

either procedurally barred or meritless (or both), the Court must deny his Section

2254 petition.

I. BACKGROUND

In September 2011, Brown was arrested following a traffic stop and charged

with being a person not to possess a firearm,1 receiving stolen property,2 and

possession of a controlled substance.3 Commonwealth v. Brown, No. 209 MDA

2014, 2015 WL 6114626, at *1 & n.1 (Pa. Super. Ct. July 30, 2015)

1 18 PA. CONS. STAT. § 6105.

2 18 PA. CONS. STAT. § 3925.

3 35 PA. STAT. AND CONS. STAT. § 780-113(a)(16).

(nonprecedential). The Commonwealth filed a criminal complaint against Brown

on September 30, 2011, and a preliminary hearing was held on December 19, 2011.

See Commonwealth v. Brown, No. 1824 MDA 2019, 2020 WL 2790447, at *4 (Pa.

Super. Ct. May 29, 2020) (nonprecedential). Approximately two years later, on

November 20, 2013, Brown underwent a bench trial, after which he was found guilty

of all three charges. Id., at *1, 5. Shortly thereafter, he was sentenced to 8 to 16

years’ incarceration. Id., at *1.

Brown appealed, raising a single issue for review: whether the trial court erred

in denying his motion to suppress evidence recovered during the traffic stop. Brown,

No. 209 MDA 2014, 2015 WL 6114626, at *1. The gravamen of Brown’s argument

was that the officer who initially detained him lacked jurisdiction to do so. Id. In a

detailed and thorough opinion, the Superior Court of Pennsylvania rejected Brown’s

claim and affirmed the trial court’s denial of his suppression motion. Id., at *1, 5-9.

The Supreme Court of Pennsylvania subsequently denied Brown’s petition for

allowance of appeal. Commonwealth v. Brown, No. 667 MAL 2017, 128 A.3d 218

(Pa. Dec. 7, 2015) (table).

Brown then filed a pro se petition under Pennsylvania’s Post Conviction

Relief Act (PCRA), 42 PA. CONS. STAT. § 9541 et seq., in November 2016. See

Brown, No. 1824 MDA 2019, 2020 WL 2790447, at *1. PCRA counsel was

appointed and filed an amended petition in March 2017. Id. In his amended PCRA

petition, Brown argued that both trial and appellate counsel were constitutionally

ineffective. Id. The trial court—now acting as the PCRA court—held a hearing on

August 24, 2018, and ultimately denied Brown’s petition in September 2019. Id.

On collateral appeal, Brown raised two issues: (1) whether trial and appellate

counsel were constitutionally ineffective in litigating his speedy trial claim under

Pennsylvania Rule of Criminal Procedure 600; and (2) whether his appointed PCRA

counsel provided ineffective assistance in litigating his Rule 600 claim.4 Id. The

Superior Court rejected both claims. See id., at *2-6. The panel denied Brown’s

ineffectiveness claim related to the conduct of trial and appellate counsel on the

merits, see id., but found that his second claim (regarding alleged ineffective

assistance of PCRA counsel) could not be raised for the first time on appeal; rather,

such a claim had to be presented through a serial PCRA petition, see id., at *6.5 The

Supreme Court of Pennsylvania again denied Brown’s petition for allowance of

4 Brown also raised a third issue regarding the PCRA court permitting PCRA counsel to withdraw

several days before the appeal deadline and failing to appoint substitute counsel. See id. (issue for

appeal number one). However, the Superior Court declined to address this claim because it found

Brown’s appeal timely, which mooted his argument concerning the alleged untimely withdrawal

of PCRA counsel. See id., at *2 & n.2.

5 In making this determination, the Superior Court relied on then-binding case law holding that

“claims of PCRA counsel’s ineffectiveness may not be raised for the first time on appeal.” See

id., at *6 (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. Ct. 2014) (en banc),

overruled in part by Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021)). In October 2021, the

Supreme Court of Pennsylvania held that, in some circumstances, a claim of ineffective assistance

of PCRA counsel may be raised on collateral appeal, overruling longstanding precedent that

required such a claim to be brought in a serial PCRA petition. See Bradley, 261 A.3d at 401-02,

405.

appeal. Commonwealth v. Brown, No. 448 MAL 2020, 266 A.3d 450 (Pa. Nov. 3,

2021) (table).

Brown filed his initial Section 2254 petition in this Court in January 2022.

(See generally Doc. No. 1.) He then filed an amended petition two months later.

(See generally Doc. No. 7.) Respondent moved to dismiss the amended petition as

untimely, which motion this Court denied. (See Doc. No. 13.) Respondent then

filed a response to the merits of Brown’s amended Section 2254 petition. (See Doc.

No. 14.) Brown did not file a reply or “traverse” and the time in which to do so has

passed, so his amended habeas petition is ripe for disposition.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28

U.S.C. §§ 2241-2254, mandates that petitioners demonstrate that they have

“exhausted the remedies available in the courts of the State” before seeking federal

habeas relief. Id. § 2254(b)(1)(A). An exhausted claim is one that has been “fairly

presented” to the state courts “by invoking one complete round of the State’s

established appellate review process,” and which has been adjudicated on the merits.

Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (quoting O’Sullivan v.

Boerckel, 526 U.S. 838, 844-45 (1999)); see also Johnson v. Williams, 568 U.S. 289,

302 (2013).

If a state prisoner has not fairly presented a claim to the state courts “but state

law clearly forecloses review, exhaustion is excused, but the doctrine of procedural

default may come into play.” Carpenter, 296 F.3d at 146 (citations omitted).

Generally, if a prisoner has procedurally defaulted on a claim by failing to raise it in

state-court proceedings, a federal habeas court will not review the merits of the

claim, even one that implicates constitutional concerns. Martinez v. Ryan, 566 U.S.

1, 9 (2012) (citing Coleman v. Thompson, 501 U.S. 722, 747-48 (1991); Wainwright

v. Sykes, 433 U.S. 72, 84-85 (1977)).

A few limited exceptions to this rule exist. One exception is that “[a] prisoner

may obtain federal review of a defaulted claim by showing cause for the default and

prejudice from a violation of federal law.” Id. at 10 (citing Coleman, 501 U.S. at

750). “Cause for a procedural default exists where something external to the

petitioner, something that cannot fairly be attributed to him[,] . . . impeded [his]

efforts to comply with the State’s procedural rule.” Maples v. Thomas, 565 U.S.

266, 280 (2012) (alterations in original) (citations and internal quotation marks

omitted). To establish prejudice, a petitioner must show not merely that there were

errors that created a possibility of prejudice, but that they “worked to his actual and

substantial disadvantage, infecting his entire trial with error of constitutional

dimensions.” Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008) (quoting United

States v. Frady, 456 U.S. 152, 170 (1982)). If cause and prejudice are established,

the federal court reviews the claim de novo “because the state court did not consider

the claim on the merits.” Bey v. Superintendent Greene SCI, 856 F.3d 230, 236 (3d

Cir. 2017), cert. denied sub nom. Gilmore v. Bey, 138 S. Ct. 740 (2018) (mem.)

(citation omitted).

Another rare exception that will excuse a procedural default is if the petitioner

can show that “failure to consider the claim will result in a fundamental ‘miscarriage

of justice.’” Carpenter, 296 F.3d at 146 (quoting Coleman, 501 U.S. at 750). To

satisfy the “fundamental miscarriage of justice” exception, a petitioner typically will

have to show actual innocence. Leyva v. Williams, 504 F.3d 357, 366 (3d Cir. 2007)

(citation omitted).

III. DISCUSSION

Brown raises four grounds for relief in his amended Section 2254 petition.

(See Doc. No. 7 at 5-10.) However, as Respondent aptly notes, Brown’s third and

fourth claims are nearly identical Fourth Amendment challenges to the traffic stop

that led to his arrest, so those claims will be analyzed together. The Court will take

each of Brown’s claims in turn.

A. Ground One – Speedy Trial Claim

A continual refrain from Brown’s state post-conviction proceedings is that his

speedy trial rights under Pennsylvania law were violated. He has repeatedly

maintained that he was not brought to trial within the time limits provided by

Pennsylvania Rule of Criminal Procedure 600,6 and therefore his criminal case

should have been dismissed with prejudice.

Brown, however, never properly asserted this claim in state court and

therefore it is procedurally defaulted and unreviewable. See Martinez, 566 U.S. at

9. He argues that the reason the claim was not presented is that his appellate counsel

“failed to raise or argue this issue on direct appeal.”7 See id. at 5. Thus, although

Brown wants to directly assert a speedy trial violation (and it appears that he intends

to implicate the federal right to a speedy trial found in the Sixth Amendment, (see

Doc. No. 7 at 5); U.S. CONST. amend. VI (“In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial . . . .”)), he cannot do so because he

did not present this claim to the state courts.

He may, however, assert a claim of ineffective assistance of appellate counsel

because he properly exhausted this claim “by invoking one complete round of the

State’s established appellate review process,” through which the claim was decided

on the merits. Carpenter, 296 F.3d at 146 (citation omitted). The Court, therefore,

6 Rule 600 generally requires the Commonwealth to bring a defendant to trial within 365 days of

the criminal complaint being filed. See PA. R. CRIM. P. 600(A)(2)(a).

7 Brown also contends that this issue “was preserved in [his] Rule 1925(b) Statement of Matters

Complained of on Appeal,” (Doc. No. 7 at 5), but there is no evidence to substantiate this assertion.

Respondent has produced Brown’s Rule 1925(b) statement and it does not contain a Rule 600 or

constitutional speedy trial claim. (See Doc. No. 14-1 at 149.) The trial court’s Rule 1925(a)

opinion, see PA. R. APP. P. 1925(a), does not identify or address a speedy trial claim either. (See

id. at 113.)

will construe Brown’s first ground for relief as a Sixth Amendment claim of

ineffective assistance of appellate counsel for failing to raise a Rule 600 violation on

appeal.

A collateral attack based on ineffective assistance of counsel is governed by

the familiar two-pronged test set forth in Strickland v. Washington, 466 U.S. 668

(1984). To prevail on such a claim, a criminal defendant must demonstrate that (1)

counsel’s representation fell below an objective level of reasonableness based on

prevailing professional norms, and (2) the deficient representation was prejudicial.

Id. at 687-88. The defendant bears the burden of proving both prongs. See id. at

687.

In determining whether counsel has satisfied the objective standard of

reasonableness under the first prong, courts must be highly deferential toward

counsel’s conduct. Id. at 689. There is a strong presumption that counsel’s

performance falls within the wide range of reasonable professional assistance. See

United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989). Only a “rare claim” of

ineffectiveness of counsel should succeed “under the properly deferential standard

to be applied in scrutinizing counsel’s performance.” Id. at 711 (citing Strickland,

466 U.S. at 689-90). To satisfy the prejudice prong, the defendant must establish a

reasonable probability that, but for counsel’s errors, the outcome of the proceeding

would have been different. Strickland, 466 U.S. at 694. The district court need not

conduct its analysis of the two prongs in a particular order or even address both

prongs of the inquiry if the defendant makes an insufficient showing in one. See id.

at 697; United States v. Lilly, 536 F.3d 190, 196 (3d Cir. 2008).

When a claim of ineffective assistance of counsel has been exhausted in state

court, review of that claim by a federal habeas court is significantly circumscribed.

The federal court does not review the ineffectiveness claim de novo; rather, “[t]he

pivotal question is whether the state court’s application of the Strickland standard

was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101 (2011); Collins v. Sec’y

of Pa. Dep’t of Corr., 742 F.3d 528, 546-47 (3d Cir. 2014). Under this “doubly”

deferential standard, “so long as fairminded jurists could disagree on the correctness

of the state court’s decision,” a state court’s determination that a Strickland claim

lacks merit precludes federal habeas relief. Richter, 562 U.S. at 101, 105 (citation

omitted).

As noted above, Brown raised this ineffectiveness claim in his amended

PCRA petition, (see Doc. No. 14-1 at 209), and on collateral appeal, see Brown, No.

1824 MDA 2019, 2020 WL 2790447, at *1. The Superior Court performed a

thorough time-computation analysis and determined that there had been no Rule 600

violation in Brown’s case. See id., at *2-6. Specifically, the panel found as follows:

Upon review of the preceding procedural history, we conclude that

[Brown]’s Rule 600 claim lacks merit. The Commonwealth filed a

criminal complaint against [Brown] on September 30, 2011. As such,

the mechanical run date was September 30, 2012. A total of 477 days

of delay, however, are attributable to [Brown] and the judiciary and, as

such, are excludable. Specifically, [Brown] caused the following

periods of delay: February 21, 2012 to October 5, 2012 ([Brown]’s

omnibus pre-trial motion); and November 30, 2012 to May 14, 2013

([Brown]’s motion to reconsider the omnibus pre-trial motion and

motion to continue trial). Moreover, the following period is attributable

to judicial delay: August 5, 2013 to October 29, 2013 (order scheduling

trial, trial judge’s mandatory military leave). Adding the excludable

time to the mechanical run date, we calculate the adjusted run date to

be January 20, 2014. In addition, we calculate a total of 69 days of

excusable delay. Indeed, because the magistrate district judge

unilaterally continued [Brown]’s preliminary hearing, the period of

October 11, 2011 to December 19, 2011, is excusable. See

Commonwealth v. Bradford, 46 A.3d 693, 704-705 (Pa. 2012).

Accordingly, this calculation extends the final, adjusted run date to (at

the earliest) March 31, 2014—nearly four months after [Brown]’s trial

commenced.

Id., at *5-6 (footnotes omitted). The panel consequently concluded that there was

no ineffectiveness of trial or appellate counsel for failing to raise or preserve,

respectively, a meritless Rule 600 challenge. See id., at *6.

Brown does not explain how the Superior Court’s determination on his Rule

600-based claim of ineffective assistance of counsel was unreasonable. He does not

specify how the Superior Court’s time calculations, including excludable and

excusable time, were incorrect or inaccurate, nor does he set forth how he believes

the calculations should have been performed. Brown has, quite simply, failed to

carry his burden to establish ineffective assistance of counsel or to show how the

state court’s determination on this claim was an unreasonable application of

Strickland.

This Court, moreover, cannot perform a de novo review of this Strickland

claim, and nothing about the Superior Court’s decision appears unreasonable. See

Williams v. Taylor, 529 U.S. 362, 410, 412 (2000) (explaining that “an unreasonable

application of federal law is different from an incorrect application of federal law”).

Nor has Brown established, by clear and convincing evidence, that any factual

premise relied on by the Superior Court was incorrect. See Dennis v. Sec’y, Pa.

Dep’t of Corr., 834 F.3d 263, 281 (3d Cir. 2016) (en banc); 28 U.S.C. § 2254(d)(2),

(e)(1).

The only support Brown provides for this claim is vague reliance on

Commonwealth v. Harth, 252 A.3d 600 (Pa. 2021). (See Doc. No. 7 at 5.) Brown

avers that his petition for allowance of appeal was held by the Pennsylvania Supreme

Court pending a decision in Harth, but then was denied after Harth was decided.

(See id.) In Harth, the Supreme Court of Pennsylvania held that “in ruling on a

defendant’s Rule 600 motion to dismiss, a trial court must first determine whether

the Commonwealth has met its obligation to act with due diligence throughout the

life of the case; if the Commonwealth meets its burden of proving due diligence,

only then may the trial court rely upon its own congested calendar or other

scheduling problems as justification for denying the defendant’s motion.” Harth,

252 A.3d at 618. The court then reviewed the record facts concerning Harth’s Rule

600 timeline and determined that the Commonwealth had failed to exercise due

diligence and had violated Rule 600, thereby requiring reversal of Harth’s judgment

of sentence and dismissal of the case against him. See id. at 621-22.

Again, Brown’s argument concerning Harth is unclear because he does not

make one. He does not explain how the Harth decision applies to his case or why a

2021 decision by the Pennsylvania Supreme Court would imply that the 2020

Superior Court collateral-review decision in his case was incorrectly decided. Even

assuming that the factual circumstances in Harth were identical to Brown’s (which

is extremely unlikely), that does not render the Superior Court’s determination on

this Strickland claim unreasonable, as the Superior Court was not bound by Harth

at the time it decided Brown’s collateral appeal. Nor can Brown rely on Harth to

support his claim that appellate counsel was constitutionally deficient, as an attorney

cannot be ineffective for failing to make an argument based on state law that had not

yet been established.8

The Court thus concludes that Brown has failed to establish that the state

court’s determination on this Strickland claim was unreasonable. Consequently,

Ground One warrants no relief.

8 The Court further observes that if, as Brown claims, his petition for allowance of appeal was put

on hold during the pendency of Harth but then denied following that decision, it follows that the

Supreme Court of Pennsylvania must have determined that Brown’s case was materially

distinguishable from Harth and did not warrant further consideration, reversal, or remand.

B. Ground Two – Ineffective Assistance of PCRA Counsel

In Brown’s second claim, he argues that his PCRA counsel was ineffective

for failing to properly litigate his challenge to trial and appellate counsel’s

effectiveness and for “erroneously conced[ing]” that “various time not excludable”

was excludable or excusable “under the court’s Rule 600 analysis.” (Doc. No. 7 at

6.) This claim is unreviewable for two reasons.

First, Brown did not exhaust this claim in state court. As noted above, the

Superior Court—relying on then-binding precedent—summarily dismissed this

claim and explained that it had to be a raised in a serial PCRA petition. Respondent

asserts that Brown has indeed filed such a serial PCRA petition, and that this petition

is still pending in state court. (See Doc. No. 14 at 18; Doc. No. 14-1 at 360-65.)

Accordingly, this claim is unexhausted and unreviewable. See 28 U.S.C. §

2254(b)(1)(A).

A second and more fatal problem is that Brown’s claim of ineffective

assistance of post-conviction counsel is not cognizable on federal habeas review. It

is well settled that there is no federal constitutional right to counsel in state post-

conviction proceedings, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), and

thus there is no Sixth Amendment right to effective assistance of state post-

conviction counsel, see Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citing

Wainwright v. Torna, 455 U.S. 586, 587-88 (1982)).9 So even if Brown were to

properly exhaust this claim in state court and it was denied on the merits, he could

not raise it in a Section 2254 petition. See Estelle v. McGuire, 502 U.S. 62, 67-68

(1991) (“[I]t it is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions. In conducting habeas review, a federal court

is limited to deciding whether a conviction violated the Constitution, laws, or treaties

of the United States.” (citations omitted)).

C. Grounds Three and Four – Fourth Amendment Claims

In Brown’s final two grounds for relief, which are nearly identical, he

challenges the constitutionality of the traffic stop that led to his arrest and

prosecution. Brown contends that he was stopped by an officer who lacked

jurisdiction and probable cause to effectuate the traffic stop, resulting in an “illegal

search and seizure of [his] person and vehicle.” (Doc. No. 7 at 8; see also id. at 9-

10.)

The lawfulness of Brown’s traffic stop and arrest was fully litigated in state

court10 and is unreviewable in federal habeas proceedings. It has long been settled

9 The Court notes that—contrary to federal law—Pennsylvania provides for the right to counsel in

initial post-conviction proceedings, see PA. R. CRIM. P. 904(C), and thus requires effective

assistance of post-conviction counsel, see Commonwealth v. Albrecht, 720 A.2d 693, 699-700 (Pa.

1998).

10 To the extent that Brown is attempting to raise an entirely new Fourth Amendment claim that

he did not assert in state court regarding the absence of probable cause or reasonable suspicion to

that “where the State has provided an opportunity for full and fair litigation of a

Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus

relief on the ground that evidence obtained in an unconstitutional search or seizure

was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976); see also

Wallace v. Kato, 549 U.S. 384, 395 n.5 (2007). Brown has not established any

reason why Stone’s holding would not apply to his case, nor can the Court conceive

of one. Accordingly, because Brown was afforded an opportunity for full and fair

litigation of this Fourth Amendment claim in state court, it does not—and cannot—

warrant federal habeas relief.

IV. CONCLUSION

Based on the foregoing, the Court must deny Brown’s petition for a writ of

habeas corpus under 28 U.S.C. § 2254. The Court will likewise deny a certificate of

appealability, as Brown has failed to make a substantial showing of the denial of a

constitutional right. See 28 U.S.C. § 2253(c)(2). An appropriate Order follows.

s/ Sylvia H. Rambo

United States District Judge

Dated: April 12, 2023

perform a traffic stop, any such claim would be procedurally defaulted and unreviewable by this

Court. See Martinez, 566 U.S. at 9.