Lee-Purvis v. Pennsylvania

• Decision Date: 06 July 2018
• Docket Number: Civil Action No. 17-1536
• Citation: 314 F.Supp.3d 665
• Parties: Mark LEE-PURVIS, Petitioner, v. Comm. of PENNSYLVANIA, et al., Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

314 F.Supp.3d 665

Mark LEE-PURVIS, Petitioner,

v.Comm. of PENNSYLVANIA, et al., Respondents.

Civil Action No. 17-1536

United States District Court, E.D. Pennsylvania.

Signed July 6, 2018

Mark Lee-Purvis, Philadelphia, PA, pro se.

Christopher P. Lynett, Jennifer O. Andress, Philadelphia District Attorney's Office, Philadelphia, PA, for Respondents.

MEMORANDUM

McHUGH, J.

This is an action seeking a writ of habeas corpus brought by a state prisoner, Mark Lee-Purvis, proceeding pro se.Petitioner raises six claims, and I adopt the well-reasoned Report and Recommendation of the Magistrate Judge recommending that the petition be denied. But I will nonetheless address one of the claims separately because I am not certain that waiver of the issue raised can be presumed.

Petitioner was initially arrested and charged with a violation of the Uniform Firearm Act as a result of another person's cooperation with law enforcement. Although those charges were ultimately dismissed as untimely, Lee-Purvis was convicted of Retaliation against a Witness, Witness Intimidation, Terroristic Threats and Conspiracy, because of several Facebook entries he posted online prior to his pre-trial hearing.

Petitioner argues that trial counsel was constitutionally ineffective because he failed to move to suppress the Facebook posts under the fruit of the poisonous tree doctrine, on the theory that the evidence resulted from an unlawful arrest.

The Pennsylvania Superior Court did not consider this claim on the merits because it concluded that Petitioner did not comply with Pennsylvania Rules of Appellate Procedure 2119(a) ("Rule 2119(a)"). Accordingly, the Report of the Magistrate Judge recommends that I consider this claim waived on the basis of an independent and adequate procedural state ground. The authority cited in the Report, Leake v. Dillman, 594 Fed.Appx. 756, 759 (3d Cir. 2014) and Nguyen v. Wenerowicz, 2013 WL 6473264, *5 (E.D. Pa. 2013), certainly supports such a conclusion.

But I am concerned that some further inquiry may be required by the Third Circuit's precedential decision in Rolan v. Coleman, 680 F.3d 311, 319 (3d Cir. 2012). In Rolan, a district court had accepted the state court's conclusion that an issue was waived under Rule 2119(a), but the Court of Appeals rejected this approach and looked to the petitioner's brief before the Pennsylvania Superior Court. Upon review, the Third Circuit concluded that the petitioner "sufficiently identified his claim for the [Superior Court]," and was therefore in substantial compliance with Rule 2119(a), and proceeded to resolve the petition on the merits. 680 F.3d at 318–19. This suggests that under appropriate circumstances the district court may be obligated to make an independent determination of waiver. SeeCharleston v. Gilmore, 305 F.Supp.3d 612, 636–37 (E.D. Pa. 2018).

1 Mindful of Rolan, having reviewed Petitioner's PCRA briefing, I am persuaded that his argument was sufficiently clear to avoid waiver. Rule 2119(a) states that "[t]he argument shall be divided into as many parts as there are questions to be argued, and shall have at the head of each part—distinctive type or type distinctively displayed—the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent." Petitioner submitted an eight-part brief with a table of contents listing each of the headers and sub-headers. The headers and sub-headers were bolded and separated from the main text by additional spacing. The sub-header for the section advancing the argument for Claim One was consistent with that. In that section, Petitioner set forth detailed factual allegations, with several citations to the record, and cited cases he argued would render the fruit of the poisonous tree doctrine applicable in this context. Against that backdrop, Petitioner sufficiently identified his claim for the Superior Court, thereby substantially complying with Rule 2119(a).

His claim nonetheless fails on the merits. In order to succeed on an ineffective assistance of counsel claim, Lee-Purvis must show both that counsel's representation fell below an objective standard of representation, and that counsel's deficient performance deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

I conclude that trial counsel's representation was objectively reasonable, and that it did not prejudice Petitioner's defense.

2 Petitioner's argument that his trial counsel was ineffective for failing to move to suppress the Facebook posts is based on an erroneous premise and otherwise lacks support. It assumes that because the firearms charge was dismissed, other evidence gathered by law enforcement is necessarily tainted as fruit of the poisonous tree. This is incorrect because the mere fact that charges are later dismissed does not mean that there was no probable cause to arrest. Second, as Petitioner himself acknowledges, the Facebook evidence was seized after his arrest as part of a follow-on investigation into potential witness intimidation before his preliminary hearing, and was seized by means of a search warrant. Pet. 36, ECF No. 1 (stating that the Facebook posts appeared prior to the December, 2011 preliminary hearing, and that "Agent Dietz prepared and served a search warrant on Facebook.com"). Petitioner does not proffer any argument that probable cause was lacking for issuance of the warrant, and it is not apparent how trial counsel would have had any good faith basis on which to move for suppression.

For the reasons set forth in the Report and Recommendation, and following this additional analysis as to the merits of claim one, the Petition will be denied in its entirety.

REPORT AND RECOMMENDATION

February 5, 2018

CAROL SANDRA MOORE WELLS, UNITED STATES MAGISTRATE JUDGE

Presently before the court is a Petition for a Writ of Habeas Corpus filed by Mark Lee-Purvis ("Petitioner"), pro se , pursuant to 28 U.S.C. § 2254. Petitioner challenges Philadelphia County convictions that resulted in his sentence of five to twelve years. He seeks habeas relief based upon several allegations of ineffective assistance of counsel and an alleged error in the admission of evidence. The Honorable Gerald A. McHugh referred this matter to the undersigned for preparation of a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, it is recommended that Petitioner not receive habeas relief.

I. PROCEDURAL HISTORY¹

The facts leading to Petitioner's conviction and sentence are as follow:

In late 2008, Tyrell Ginyard was arrested on charges of violating the Uniform Firearms Act. Shortly thereafter, he began providing information about several illegal gun sales he had made in 2004, including two to [Petitioner], in order to mitigate his own exposure.

On September 5, 2011, shortly before the preliminary hearing in this matter, [Petitioner] posted to his Facebook page an image of a rat with a ring around it and line through it that said "I hate rats" and "No rats allowed." The caption to the photo read "Tyrell Ginyard is a RAT ... he frequents North Philly, lives in West Philly and is about to have a baby from a girl in South Philly (5^th Street) ... he tries to fit into everybody's set and engage in all types of illegal activity in hopes of making people think he's thorough ... BEWARE ... He'll even lie on you to cut himself a sweet deal ... I got a two-page affidavit to prove it ... ANYBODY who knows him should expose [him] just like me and bring the rat outta hiding." The caption then contained a hyperlink to Tyrell Ginyard's publicly available trial docket sheet and said "Here's a copy of his court docket sheet ... look at his charges and then look at the Nolle Prossed's ... everything else is self-explanatory ... if U don't understand it inbox me and I'll be happy to walk you through it ... I'll have a pic of this crumb later ... Thank You ... that's my PSA for today."

Three days later, on September 8, 2011, [Petitioner] posted a picture of Ginyard with the words "RAT BOY A/K/A TYRELL GINYARD" written across the picture and the word "Rat" made to look as if it was part of Ginyard's necklace. The caption to the picture read "I told y'all I was gonna get a pic of this crumb ... RAT-BOY !!!!!" Ginyard informed Special Agent Martin Dietz of these Facebook photos. On September 23, 2011, Special Agent Dietz prepared and served a search warrant on Facebook.com for information related to the user "MIZ ASSAPPA PURVIS AKA MARK-LEE PURVIS."

A search of [Petitioner's] publically-available Facebook page revealed that on December 10, 2011, [Petitioner] posted a picture of a fist with the middle finger extended which said, [a string of profane expressions]. Below the picture, but still part of the image it read, "this is a personal message from ME to the following [a profanity] Detective Martin Dietz, and Police Informant Tyrell Ginyard. Y'all plan backfired [a profanity] ... now look who's laughing ... Ha-Ha-Ha-Ha-Ha-Ha ..." The caption to the photo read "if ya name ain't on this poster and it should be-don't think you dodged a bullet ... I'll get around to you eventually."

Each of these items posted to Facebook account number 100000261860316, a unique user account bearing the name "Miz Asappa Purvis" and containing several photographs of [Petitioner] as well as other information, including business information and an email address, identifying [Petitioner] as the person to whom the account corresponds.

[Petitioner] initially evaded officers who attempted to arrest him at his home on March 10, 2012, using the roof of an adjoining house to get away. He surrendered with his attorney shortly thereafter and was taken into custody on March 14, 2012.

Commonwealth v. Lee–Purvis , 2014 WL 10986255, at *1-*2 (Pa. Super. Ct. Feb. 7, 2014). At trial, the gun offenses were dismissed, because the statute of limitations for them had expired. Id. at *3 (Trial Court opinion...