Brown v. Lockett, Civil Action No. 10-1713

• Decision Date: 23 October 2012
• Docket Number: Civil Action No. 10-1713
• Parties: GENE LEONARD BROWN, Petitioner, v. MELVIN LOCKETT; and TOM CORBETT, Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

GENE LEONARD BROWN, Petitioner,

v.MELVIN LOCKETT; and TOM CORBETT, Respondents.

Civil Action No. 10-1713

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Date: October 23, 2012

Magistrate Judge Maureen P. Kelly

MEMORANDUM OPINION

Gene Leonard Brown ("Petitioner"), represented by privately retained counsel, has filed a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (the "Petition"). In June 2001, a jury in the Allegheny County Court of Common Pleas found Petitioner guilty of first degree murder in the shooting death of an acquaintance of Petitioner by the name of Darryl Massie.¹ Petitioner is currently serving a sentence of life imprisonment without the possibility of parole.

Despite seeking leave to file an Amended Petition, ECF No. 16, even with leave granted, the three claims raised in the initial Petition and brief in support, are the ones that Petitioner, in the final analysis, relies upon. The first two issues are:

5.1 Mr. Brown was denied his Sixth Amendment right to effective assistance of counsel at trial because trial counsel failed to present medical records, police reports, and witness testimony regarding the prior incident where the victim, Mr. Massie, attempted to rob Mr. Brown at gunpoint and then injured Mr. Brown during the struggle for the gun, which Mr. Brown successfully wrestled away from Mr. Massie and gave to the police.

5.2 Mr. Brown was denied his Sixth Amendment right to effective assistance of counsel at trial because trial counsel failed to call character witnesses, the names of whom were provided to trial counsel prior to trial.

ECF No. 1 at 7 to 8. Because the state courts addressed these claims on the merits and becausewe do not find that Petitioner carried his burden to show that that state courts' disposition of these claims was either contrary to or an unreasonable application of then existing United States Supreme Court precedent nor constituted an unreasonable determination of the facts, we will deny the Petition.

Petitioner also raises a third ground for relief in the Memorandum in Support of the Petition for Writ of Habeas Corpus. He argues that even if the individual errors of trial counsel are found to have not prejudiced Petitioner then the cumulative errors of trial counsel prejudiced Petitioner within the meaning of Strickland. ECF No. 2 at 71 to 80. This issue was not presented to the state courts and so the state courts did not address it. Nevertheless, because the state courts found that there were no errors by counsel, then no errors could be aggregated in order to create cumulative prejudice. Accordingly, the Petition will be denied on this ground as well.

I. PROCEDURAL AND FACTUAL HISTORY²

Following a July 31, 2000 shooting incident at the St. Clair Village housing project in the City of Pittsburgh, Petitioner was identified as the shooter in a photographic array by at least one of the witnesses.³ Petitioner was arrested on September 24, 2000 and charged with criminalhomicide in the death of Mr. Massie.

A jury trial was conducted from June 4, 2001 to June 7, 2001, before the Honorable Donna Jo McDaniel. Petitioner was represented by Sidney Sokolsky, Esquire, who was privately retained. At the trial, Petitioner took the stand in his own defense, admitted to shooting at the victim, but only at his legs and according to Petitioner, the shots either did not strike the victim or could only have struck the victim in the legs, TT at 358 to 364, whereas the fatal shots were two shots to the chest area of the victim. The victim did not have any gunshot wounds to the legs.

More specifically, Petitioner testified that he was walking to his sister's house to go to a party for their mother. While doing so, he noticed a group of men sitting down. TT at 357. He recognized one of these men to be Mr. Massie, the man, who about ten days earlier was armed with a gun and attempted to rob Petitioner. According to Petitioner, Mr. Massie got up and began walking toward Petitioner. Id., at 357-58. Mr. Massie confronted Mr. Brown, and threatened: "What are you going to do now? Where is the police at now, you little bitch." As Mr. Massie was saying this, Petitioner testified that he saw Mr. Massie reach inside his clothes in his mid-section area under his shirt as if he were going to retrieve a gun. Id. According to Petitioner, he then got his own gun and shot at Mr. Massie, aiming at or near Mr. Massie's legs. At this point, gun shots were fired in the direction of Petitioner and Mr. Massie. Petitioner saw Phil Peterson across the street shooting a gun in Petitioner's direction. Id. Mr. Peterson testified that he was shooting in order to scare Petitioner away. TT at 64. Petitioner testified that he then dropped his gun, put his hands on his head to signal that he no longer had a gun, hoping that the gunfire would stop. TT 361, 382. But the gunfire continued and Petitioner ran away and whiledoing so, he saw his cousin driving and shouted to his cousin to stop, got in the car and told his cousin what just occurred. TT at 362-63.

On June 7, 2001, a jury convicted Petitioner of murder in the first degree - apparently not crediting Petitioner's version of the events and his claimed self-defense. On June 20, 2001, the Court sentenced Mr. Brown to a mandatory term of life imprisonment, without the possibility of parole.

On June 21, 2001, the trial court appointed the Office of the Public Defender to represent Mr. Brown in his direct appeal. On March 1, 2003, the Pennsylvania Superior Court affirmed the judgment of sentence. On May 30, 2003, the Superior Court denied Mr. Brown's Application for Reargument. On February 17, 2004, the Supreme Court of Pennsylvania denied the Petition for Allowance of Appeal.

On July 8, 2004, Mr. Brown filed a pro se Petition under the Post Conviction Relief Act ("PCRA"). On September 14, 2004, the PCRA court, the Honorable Donna Jo McDaniel appointed Richard Narvin, Esquire, of the Office of Conflict Counsel of Allegheny County to represent Mr. Brown in his PCRA Petition.

Almost two years later, on August 31, 2006, after several extensions of time were granted, PCRA counsel filed an amended petition. On December 27, 2006, the Commonwealth filed its answer to the petition for PCRA relief. On January 9, 2007, the PCRA court entered on the record a Notice of Intent to Dismiss the amended PCRA petition. On April 4, 2007, the PCRA court conducted a hearing on Mr. Brown's claims of ineffectiveness of trial counsel, Sidney Sokolsky, Esquire. At the conclusion of the PCRA hearing, the court stated that it was going to deny the amended PCRA petition. See N.T. PCRA Hearing, 4/4/2007, at 47.

On February 14, 2008, the Disciplinary Board of the Supreme Court of Pennsylvania

wrote PCRA counsel, J. Richard Narvin, Esquire, advising him that Mr. Brown had filed a complaint against him complaining that Mr. Narvin had not sent Mr. Brown a transcript from the PCRA hearing nor, despite Mr. Brown's repeated attempts, had anyone from Mr. Narvin's office contacted him since the hearing. ECF No. 2-3 at 30 (Disciplinary Board of the Supreme Court of PA, Letter dated 2/14/2008). PCRA counsel did not file any motions on Mr. Brown's behalf, but instead, wrote Mr. Brown advising him to get a form from the prison law library and file a new PCRA petition indicating that he lost his right to appeal through no fault of his own. ECF No. 2-3 at 31 to 32 (Office of Conflict Counsel, J. Richard Narvin, Esquire, letter dated 2/21/2008).

Immediately, on February 29, 2008, Mr. Brown filed a new PCRA petition to have his appellate rights reinstated. On March 4, 2008, the PCRA court appointed new counsel, Scott Coffey, Esquire, to represent Mr. Brown in his appeal. On March 28, 2008, Attorney Coffey timely filed a notice of appeal to the Superior Court on Mr. Brown's behalf. On January 26, 2009, the PCRA court entered its Rule 1925(a) opinion. On September 23, 2009, the Superior Court of Pennsylvania, relying solely on the PCRA court's opinion, affirmed the PCRA court's decision. ECF No. 2-2 at 14 ("We conclude that the PCRA court's opinion aptly analyzes each of Appellant's issues. Accordingly, we affirm the order based on the PCRA court's well-reasoned opinion."). Finally, on April 5, 2010, the Supreme Court of Pennsylvania denied Mr. Brown's Petition for Allowance of Appeal.

Petitioner, through counsel then filed the Petition, ECF No. 1, and an extensive Memorandum of Law in Support of Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. ECF No. 2. Respondents filed an Answer along with an appendix of exhibits. ECF No. 10. Respondents also caused the original state court record to be transmitted to the Clerk's Office. Petitioner filed a Reply to the Commonwealth's Answer to the Petition for Writ of HabeasCorpus (hereinafter the "Traverse"). ECF No. 13.

In June 2012, Petitioner, through counsel, sought leave to amend the Petition based upon the recently decided case of Martinez v. Ryan, __ U.S. _, 132 S.Ct. 1309 (2012). In the Martinez case, the United States Supreme Court changed the prior rule that ineffective assistance of PCRA trial counsel could not serve as "cause" to excuse a procedural default of claims of trial counsel's ineffectiveness. Accordingly, Petitioner sought to amend his Petition to include claims of trial counsel's ineffectiveness that had hitherto been considered procedurally defaulted because PCRA trial counsel failed to raise those claims. More specifically, Petitioner sought to add claims that trial counsel was ineffective for failing to call five more character witnesses in addition to the already existing claim that trial counsel was ineffective for failing to call two other character witnesses. ECF No. 16-2 at 1 to 2. Petitioner also sought to add a claim that trial counsel was ineffective for failing to object to the admission of hearsay testimony, based not only on state evidentiary law of hearsay, but also based upon Petitioner's Sixth...