Opinion

Brown v. Hollibaugh

Court
District Court, M.D. Pennsylvania
Filed
Aug 14, 2024
Cited by
0 cases
Authority
More cited than 31.8%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

NOEL L. BROWN, :

Petitioner, : CIVIL ACTION NO. 4:24-CV-799

v. : (JUDGE MANNION)

KEN HOLLIBAUGH, et al., :

Respondents. :

MEMORANDUM

Presently before the court in this fee-paid pro se habeas action is the

report and recommendation of Magistrate Judge William I. Arbuckle, (Doc.

11), dated July 26, 2024, and Petitioner’s motion to appoint counsel (Doc.

12). Judge Arbuckle recommends that Petitioner, Noel L. Brown’s, petition

for a writ of habeas corpus (Doc. 1) be denied because it is an unauthorized

second petition. Petitioner filed a timely objection to Judge Arbuckle’s report.

(Doc. 13). However, based on its own review of the record as described

below, the court agrees with Judge Arbuckle’s recommendation and will

deny the petition as well as dismiss the motion to appoint counsel as moot.

I. Legal Standard

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. 636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard of review is

de novo, the district court “may also, in the exercise of sound judicial

discretion, rely on the Magistrate Judge’s proposed findings and

recommendations.” Bynum v. Colvin, 198 F. Supp 3d 434, 437 (E.D. Pa.

2016) (citing United Stated v. Raddatz, 447 U.S. 667, 676 (1980)).

A petition for writ of habeas corpus is the exclusive federal remedy for

a state prisoner challenging the “very fact or duration” of his confinement and

seeking “immediate release or a speedier release from that imprisonment.”

Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973); Leamer v. Fauver, 288

F.3d 532, 542-44 (3d Cir. 2002). A district court is authorized to “entertain an

application for a writ of habeas corpus on 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.” 28 U.S.C. §2254(a) (2006). Claimed violations of state law standing

alone, will not entitle a petitioner to relief, absent a showing that those

violations are so great as to be of a constitutional dimension. See Priester v.

Vaughan, 382 F.3d 394, 401–02 (3d Cir. 2004). Furthermore, a state

prisoner seeking to invoke the power of this court to issue a writ of habeas

corpus must have exhausted the remedies available to them in the courts of

the state. §2254(b)(1)(A).

Federal law also bars state prisoners from attacking their convictions

through second or successive habeas petitions except in very limited

circumstances. 28 U.S.C. §2244. A habeas petition is classified as a

“second” or “successive” petition within the meaning of 28 U.S.C. §2244 if a

prior petition has been decided on the merits, the prior and new petitions

challenge the same conviction, and the new petition asserts claims that were,

or could have been, raised in a prior habeas petition. See Benchoff v.

Colleran, 404 F.3d 812, 817 (3d Cir. 2005).

Pursuant to 28 U.S.C. §2244(b)(3)(A), a petitioner must seek

authorization from the appropriate court of appeals before filing a second or

successive habeas petition in a district court. If a petitioner files a second or

successive habeas petition “in a district court without the permission of a

court of appeals, the district court’s only option is to dismiss the petition or

transfer it to the court of appeals pursuant to 28 U.S.C. §1631” because the

district court lacks jurisdiction to consider the petition. Robinson v. Johnson,

313 F.3d 128, 139 (3d Cir. 2002). When determining whether to transfer a

habeas action to the court of appeals, a district court should consider

“whether the petitioner alleges sufficient facts to satisfy the gatekeeping

requirement of the relevant habeas provision.” Hatches v. Schultz, 381 F.

App’x 134, 137 (3d Cir. 2010).

In this case, the relevant statutory gatekeeping provision provides that,

a claim presented in a second or successive §2254 petition that was not

presented in a prior application will be denied unless:

(A) the applicant shows that the claim relies on a new rule of

constitutional law, made retroactive to cases on collateral review

by the Supreme Court, that was previously unavailable; or

(B) (i) the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of

the evidence as a whole, would be sufficient to establish by clear

and convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the

underlying offense.

28 U.S.C. §2244(b).

II. Discussion

Since the report correctly states the procedural and factual background

of this case, (Doc. 11, pp. 2-14), it will not be repeated herein. In short, the

present petition is petitioner’s second habeas petition to this court

challenging his November 8, 2016, state conviction for inter alia trafficking in

minors. Specifically on July 18, 2019, Petitioner filed a habeas petition

challenging his state court conviction and sentence; on September 16, 2019,

the court notified Petitioner that he was only allowed to file one such petition;

on December 18, 2019, Petitioner elected to refile an all-inclusive petition;

on October 19, 2020, the court denied that petition on its merits; and on

March 3, 2021, the Third Circuit Court of Appeals denied Petitioner’s request

for a certificate of appealability. See Brown v. Commonwealth of

Pennsylvania, No. 4:19-CV-1230 (M.D. Pa.), Docs. 1, 9, 12, 29, and 37.

Nonetheless, on May 14, 2024, Petitioner filed the present petition

again challenging his 2016 state court conviction. Since the present petition

is Petitioner’s second habeas petition filed after a prior petition was denied

on the merits and without authorization of the Third Circuit, Judge Arbuckle

recommends that it be denied but without prejudice to Petitioner seeking

permission from the Third Circuit to file such a petition. Judge Arbuckle does

not recommend transferring the petition directly to the Third Circuit because

that court has already refused to grant Petitioner a certificate of appealability

on his prior petition, which raised substantially similar claims.

Petitioner objects to this recommendation arguing that four of the 15

grounds for relief raised in his present petition could not have been

previously discovered through the exercise of due diligence and therefore

should not be denied without at least an evidentiary hearing on those claims.

The four claims cited by Petitioner are Ground Two “Brady violations,”

Ground Four “Perjury under oath,” Ground Seven “Conflict of interest on

review,” and Ground Nine “Entrapment.” Petitioner concedes that he did not

raise Ground Nine in state court. Thus, that ground for relief remains

unexhausted and must be denied regardless of whether it could have been

previously discovered.

As for the other three grounds, Petitioner did previously raise them in

state court through PCRA proceedings. However, the PCRA court denied

each of these claims, which were filed for the first time in 2022, as untimely,

and the Superior Court affirmed. See Commonwealth v. Brown, 296 A.3d

573 (Pa. Super. Ct. 2023), reargument denied (May 11, 2023), appeal

denied, 304 A.3d 707 (Pa. 2023), reconsideration denied (Nov. 17, 2023).

Under the doctrine 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.”

Martinez v. Ryan, 566 U.S. 1, 9 (2012); see also Walker v. Martin, 562 U.S.

307, 316, (2011) (A state court’s invocation of a procedural rule to deny a

prisoner’s claims precludes federal review of the claims if, among other

requisites, the state procedural rule is a nonfederal ground adequate to

support the judgment and the rule is firmly established and consistently

followed.)

When a petitioner has defaulted on his claims under state law, a court

may only reach the merits of those claims “if the petitioner makes the

standard showing of ‘cause and prejudice’ or establishes a fundamental

miscarriage of justice.” Slutzker v. Johnson, 393 F.3d 373, 381 (3d Cir. 2004)

(quoting Lines v. Larkins, 208 F.3d 153, 166 (3d Cir. 2000)). To establish

cause a petitioner must identify “some objective factor external to the

defense [that] impeded [his] efforts to comply with the State’s procedural

rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish a

fundamental miscarriage of justice a Petitioner must demonstrate “actual

innocence by asserting ‘new reliable evidence—whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial,’ showing that no reasonable juror

would have voted to find the petitioner guilty beyond a reasonable doubt.”

Hubbard v. Pinchak, 378 F.3d 333, 339–40 (3d Cir. 2004).

Here there is no dispute that PCRA claims in Pennsylvania must be

filed within in one-year of sentencing and Petitioner offers no cause or

explanation for why he filed the three claims at issue over five years after he

was sentenced. Instead, Petitioner asserts that the new facts underlying

these claims establish by clear and convincing evidence that no reasonable

factfinder would have found him guilty if presented at trial. But Petitioner does

not identify these new exculpatory facts.

In support of his “Brady” claim Petitioner only asserts that the trial court

failed to obtain a search warrant directing Instagram to produce some of the

evidence submitted at trial and that his arresting officer did not testify at trial.

Putting aside the fact that these allegations do not even resemble a Brady

violation, they do not indicate the discovery of any new exculpatory evidence

that would have prevented any juror from convicting Petitioner. Likewise, in

support of his “perjury” claim Petitioner only asserts that an unnamed “state

witness” falsely testified about “the type of dwelling located at the witness

address in the police report.” (Doc. 1 p. 10.) Besides the fact the court cannot

even discern what relevance if any this allegation has to Petitioner’s

conviction, it also does not indicate the discovery of any new exculpatory

evidence that would have prevented any juror from convicting Petitioner.

Furthermore Petitioner’s “conflict of interest” claim concerns a conflict

with the judge presiding over his PCRA proceedings not his trial and in turn

again does not indicate the discovery of any new exculpatory evidence that

would have prevented any juror from convicting him. Even Plaintiff’s

unexhausted “entrapment” claim, which baldly alleges “fraudulent

inducement of an investment contract” (Doc. 1 pp. 14-15) with no clear

relevance to Petitioner’s trial or conviction does not indicate any new

exculpatory evidence.

Accordingly, Petitioner has failed to carry his burden of establishing a

fundamental miscarriage of justice, and absent any other exception to the

procedural default doctrine the court lacks jurisdiction over Petitioner’s

unauthorized second habeas petition. For the same reasons the court will

also not directly transfer this petition to the Third Circuit. Since Petitioner’s

petition must be denied for lack of jurisdiction his motion to appoint counsel

is moot and must also be denied.

III. Conclusion

In light of the foregoing, Judge Arbuckle’s Report and

Recommendation is ADOPTED IN ITS ENTIRETY as the decision of the

court. Petitioner’s objections are OVERRULED, and his petition is DENIED

without prejudice to him obtaining the required authorization to file a second

habeas petition from the Third Circuit. Petitioner’s motion to appoint counsel

will also be DENIED as moot. The Clerk of Court is directed to CLOSE this

case.

S/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: August 14, 2024

24-799-01

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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