Prout v. Giroux

• Decision Date: 29 April 2016
• Docket Number: CIVIL ACTION NO. 14-3816
• Parties: BRIAN PROUT, Petitioner, v. NANCY GIROUX, SUPERINTENDENT, SCI FAYETTE et al., Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

BRIAN PROUT, Petitioner, v. NANCY GIROUX, SUPERINTENDENT, SCI FAYETTE et al., Respondents.

CIVIL ACTION NO. 14-3816

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

April 29, 2016

Jones, II J.

MEMORANDUM

Brian Prout ("Petitioner") has filed counseled objections, (Dkt No. 20 [hereinafter Objs.]), to the Report and Recommendation ("R&R") of the Honorable Lynne A. Sitarski, United States Magistrate Judge. (Dkt No. 19 [hereinafter R&R].) The Government did not respond.

The Court overrules Petitioner's objections and dismisses Petitioner's Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254.

I. Background

a. Underlying Facts

Petitioner was arrested on May 19, 2003 and charged with the robbery and the murder of Anthony "Ant Man" Harris during the late night/early morning hours of February 7-8, 2003. The following facts were supported by evidence at the trial:

Richard Brown ran a drug operation in West Philadelphia and employed [Petitioner], Christopher Smith, and Vincent Smithwick as gang enforcers. Anthony Harris (victim)...began selling drugs early in 2003 on a nearby corner not under Brown's control. On February 7, 2013, Brown, Smithwick, Smith, and [P]etitioner, discussed plans to kill Powell and the victim in order to eliminate competition.

Later that day, Brown, Smith, Smithwick and [P]etitioner decided to apprehend Powell in an alleyway. Powell never appeared...All four men were armed...At Brown's request, Smith left to locate the victim at the home of T[ie]sha Williams and Tonya Brister, who were friends with the victim...Petitioner, Brown, and Smithwick waited...for Smith to return with the victim...

The victim drove with Smith in his own car to the location where Brown, Smithwick, and [P]etitioner were waiting...arriving around 10:00 p.m. Petitioner approached the victim's car, tapped his AK-47 on the window, and told him to get out. The victim got out of the car and ran.

Petitioner fired six or seven shots at the victim, striking him in the leg and knocking him to the ground. Smith and [P]etitioner picked up the victim, who was still conscious, and placed him the back seat of the Taurus. Hyneith Jacobs, a young man who sold drugs for Brown, witnessed [P]etitioner shoot the victim, and then move the victim to the back of the Taurus with Smith's help...

...[I]n the car [with Smithwick] were Smith, [P]etitioner and the victim....Smithwick shot the victim in the forehead....

Once the group arrived at the Schuykill River...with [P]etitioner's assistance, [Anthony Petty] tied up the victim's shoulders with rope and weighted his body down with bricks. Jacobs...helped Petty, Smithwick and [P]etitioner drag the victim's body into the water...

That same evening, Jack Darrah, a CSX Railroad employee, was driving to the company's facility when he noticed...four men dragging a large, motionless body toward[] the river. Darrah radioed railroad security, who called 911. Police arrived around 2:15am [on February 8, 2003], at which point the group of men was gone. Police noticed a trail of blood and "drag marks" that led to the river's edge. Police followed footprints near the blood trail and discovered the victim's body...

During the investigation of the scene, police recovered one .357 cartridge casing, one Timberland boot, a pager covered in blood, and multiple layers of duct tape formed into a large circle. Acting on a tip from a confidential informant...Detective John McNamee obtained an arrest warrant for Brown on May 19, 2003, which listed unit 2006 of the Lincoln Green Apartments at 4000 Presidential Boulevard (Lincoln Green Apartment), as an address where Brown might be found. [The detective also obtained a search warrant for that location, to search for Brown...] Upon entering the apartment...police discovered [P]etitioner and Jawayne Brown, who were arrested on outstanding warrants. Homicide detectives observed two handguns, one atop a pile of clothes in a closet and one underneath a couch in the living room; on that basis, the detectives called the Homicide Division to obtain a search and seizure warrant. Two .357 Sig pistols were recovered from that location, one of which was later found to be the weapon that fired the .357 FCC found near the river's edge. In addition, police found two bulletproof vests, a full magazine for a .45 handgun, and two pairs of black Nike sports gloves.

(R&R at 1-4 (quoting Com. v. Prout, CP-51-CR-0808073-2004, slip op. at 2-6 (Ct. Com. Pl. July 20, 2012) (internal citations omitted.))

Petitioner, Brown, Smith, and Petty were jointly tried as co-defendants in a jury trial in the Court of Common Pleas of Philadelphia County, with the Honorable Renee Cardwell Hughes presiding. Com. v. Prout, No. CP-51-CR-0808073-2004 (Ct. Com. Pl. 2004) (hereinafter "Crim Dkt".). Petitioner was represented by Michael Wallace, Esq., with William Bowe, Esq. (collectively "Trial Counsel"), serving as mitigation counsel. (Crim. Dkt at 15.) On August 23, 2005, the jury found Petitioner guilty of murder in the first degree, 18 Pa. Cons. Stat. § 250, robbery, id. at § 3701, kidnapping, id. at § 2901, carrying firearms without a license, id. at § 6106, and criminal conspiracy, id. § 903. (Crim. Dkt at 3-4.) Petitioner was sentenced to life imprisonment for the first degree murder conviction, and also ten-to-twenty years for the robbery conviction, ten-to-twenty years for the kidnapping conviction, ten-to-twenty years for the conspiracy conviction, and three-and-a-half-to-seven years for the carrying firearms without a license conviction, to be served consecutive to the life sentence and currently with one another. (Crim. Dkt at 3, 13-14.)

b. Direct Appeal and Pennsylvania Post Conviction Relief Act Appeal

Petitioner, represented by Barnaby Wittels, Esq., and Carole McHugh, Esq. (collectively "Appellate Counsel"), filed a timely direct appeal. The Trial Court affirmed Petitioner's conviction and judgment of sentence. Com. v. Prout, 2670 EDA 2005, slip op. at 15 (Ct. Com. Pl. July 19, 2007). Petitioner appealed the Trial Court's affirmance to the Superior Court, and raised three points. (Pet'r's Ex. D-6 [hereinafter Pet'r's Trial App.]) The Superior Court affirmed the convictions and sentence. Com. v. Prout, 2670 EDA 2005, slip. op. at 6 (Pa. Super. March 31, 2009)). Petitioner's timely petition for allowance of appeal before the Pennsylvania Supreme Court was denied in December 2009. Com. v. Prout, 603 Pa. 708 (Pa. 2009).

Petitioner filed a timely, pro se petition for relief under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. §§ 9541 et seq. Mitchell Scott Strutin, Esq. ("PCRA Counsel") was appointed as PCRA Counsel. PCRA counsel filed an Amended PCRA Petition raising twelve claims. (Pet'r's Am. PCRA Pet.) The PCRA Court provided Notice Pursuant to Pennsylvania Rule of Criminal Procedure that Petitioner's requests would be denied. Com. v. Prout, CP-51-CR-0808073-2004, slip. op. at 2 (Ct. Com. Pl. March 22, 2012).

Petitioner filed a Concise Statement of Errors Complained of on Appeal. (Pet'r's Ex. D-20 [hereinafter Pet'r's PCRA App.].) The PCRA Court affirmed dismissal. Prout, CP-51-CR-808073-2004, slip. op. at 9-33 (Ct. Com. Pl. July 20, 2012). Petitioner appealed, and the Superior Court affirmed. Com. v. Prout, 1343 EDA 2012, slip. op. at 10 (Pa. Super. Jan. 9, 2013). The Pennsylvania Supreme Court denied allocator review. Com. v. Prout, 64 A.3d 272 (Pa. Aug. 23, 2013).

c. Petitioner's Habeas Claims

Petitioner timely filed the instant habeas action. (Dkt No. 1.) With permission of the Magistrate Court, Petitioner filed an amended, counseled Petition. (Dkt No. 9 [hereinafter Am. Pet.].) The Government responded, (Dkt No. 16 [hereinafter Resp.]), and Petitioner filed a Reply. (Dkt No. 17 [hereinafter Rep.].)

d. Magistrate Court's Report and Recommendation and Petitioner's Objections

The Magistrate Court found that all the claims were without merit or were procedurally defaulted. (R&R.) Petitioner objects to every single ruling of the Magistrate Judge. (Objs.) The Government did not respond to the objections.

II. Legal Standards

a. Standard of Review

When objections are filed to the R&R of a Magistrate Judge, the District Court must review de novo those portions of the R&R to which objection is made. 28 U.S.C. §636(b)(1). If there are no objections to the R&R or when reviewing those portions of the R&R to which no objections are directed, the Court should, as a matter of good practice, "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72(b), advisory committee notes; see also Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987).

The Court reviews those portions of the R&R to which objection were taken de novo. As for the portion of the R&R to which no objection was made, the Court reviews the R&R for clear error.

b. Procedural Default

The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. §§ 2241-66 ("AEDPA") deals with the right of all persons in state custody, or in federal custody, to file a petition in a federal court seeking the issuance of a writ of habeas corpus. In the context of a prisoner in state custody, if such a writ of habeas corpus is issued by a federal court, the prisoner will be released from such state custody on the grounds that certain rights accruing to that prisoner pursuant to the United States Constitution have been violated; habeas corpus motions pursuant to AEDPA are the only possible means of obtaining this type of relief from state custody. Benchoff v. Colleran, 404 F.3d 812 (3d Cir. 2005); Coady v. Vaughn, 251 F.3d 480 (3d Cir. 2001).

By means of AEDPA, Congress also created a series of intentionally restrictive gate-keeping conditions which must be satisfied for a prisoner to prevail in his petition seeking the issuance of a writ of habeas corpus. The strict AEDPA gate-keeping procedures were enacted by Congress in order to...