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