Brand v. Gillis

82 F. App'x 278
CourtCourt of Appeals for the Third Circuit
DecidedDecember 2, 2003
DocketNo. 02-3494
StatusPublished

This text of 82 F. App'x 278 (Brand v. Gillis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brand v. Gillis, 82 F. App'x 278 (3d Cir. 2003).

Opinion

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Petitioner Tyrone Brand filed a petition for writ of habeas corpus in the District Court pursuant to 28 U.S.C. § 2254. A Pennsylvania prisoner serving a life sentence, Brand claims that the assistance of his counsel was ineffective during his state court first-degree murder trial. Specifically, Brand argues that the trial counsel erroneously stipulated to a blood alcohol level that was substantially lower than the actual level, failed to dispute and disprove certain factual findings relevant to the element of specific intent, and neglected to properly impeach statements made by certain witnesses. A Magistrate Judge (“MJ”) issued a report recommending denial and dismissal of Brand’s petition, finding that Brand did not demonstrate any “substantial violation of any Constitutional right.” The District Court, after considering Brand’s objections to the MJ’s findings, approved and adopted the report and recommendation, as supplemented by its memorandum, and issued an order denying and dismissing Brand’s petition. For the following reasons, we will affirm the District Court’s order. Because we write solely for the parties, we need not set forth a detailed recitation of the background for this appeal and will limit our discussion to resolution of the issues presented.

I.

Background

Brand was an employee of the Philadelphia Electric Company. On October 31, 1986, having already had two drinks during the workday, Brand went to a bar with decedent Robin Harris, a co-worker. According to trial testimony, Brand consumed eight vodka drinks and a beer from 5:00 to 9:30 pm. Harris then drove Brand, in Brand’s automobile, to the Sugar Sticks Bar in Germantown to have another drink. The bartender at the Sugar Sticks Bar, however, refused to serve Brand alcohol because Brand appeared intoxicated. Harris and Brand then left the Sugar Sticks Bar.

As Harris and Brand were conversing near Brand’s automobile outside the Sugar Sticks Bar, Olious Hightower, who was a neighbor of Harris, appeared on the scene. After briefly conversing with each other, Hightower and Harris began walking together down Germantown Avenue. Brand [280]*280followed them slowly in his car. According to Hightower, Brand then got out of his car, pointed a gun at Harris’s face, and said “I should kill you.” Hightower then knocked the gun out of Brand’s hand, picked up the gun, and told Brand to get back into his car. Brand again followed Harris and Hightower in his car and asked to have his gun back. At some point, Brand’s car veered onto the sidewalk in Harris and Hightower’s direction, struck both Harris and Hightower, and crashed into a wall approximately 30 to 40 feet from the curb. While Hightower sustained only minor injuries, Harris died 11 days later of multiple head injuries.

Brand was convicted of first-degree murder, driving under the influence, simple assault, and various weapons offenses following a nonjury trial in the Pennsylvania Court of Common Pleas. Brand then filed post-verdict motions with the trial court, claiming the first-degree murder conviction was against the weight of the evidence because the trial court failed to consider Brand’s severely intoxicated state. The court denied these motions and sentenced Brand to life imprisonment on the murder conviction, with concurrent terms for his other crimes. Brand’s direct appeal to the Pennsylvania Superior Court was denied, and the Pennsylvania Supreme court denied allocatur.

On January 14, 1997, Brand filed a pro se Petition for Post Conviction Collateral Relief in the Pennsylvania Court of Common Pleas pursuant to changes in Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. Ann. §§ 9541-9546. Brand alleged that he was denied effective assistance of counsel during trial. Specifically, Brand argued that his trial counsel (1) failed to establish his true level of intoxication and demonstrate the effects of his head injury on his behavior immediately after the incident, (2) failed to investigate the actual circumstances of the car crash through accident reconstruction and correct erroneous facts relied upon by the trial court in its conviction, and (3) failed to cross-examine opposing witnesses on key points regarding Brand’s behavior during the incident. After review, the PCRA court dismissed Brand’s petition summarily on October 27, 1997, holding that Brand’s claims were without merit on their face. The same court then affirmed the dismissal on June 1, 1998. The Pennsylvania Superior Court subsequently affirmed the PCRA court’s order, and the Pennsylvania Supreme Court denied allocatur.

Brand filed the petition for habeas corpus in the District Court on October 13, 1999. As he did in the PCRA petition, Brand argued that his trial counsel provided ineffective assistance in (1) failing to establish that Brand’s blood alcohol content was too high to form the specific intent required for first-degree murder, (2) failing to refute the evidence concerning the physical circumstances surrounding the car accident, and (3) failing to cross-examine witnesses regarding Brand’s pre- and post-accident conduct. Brand also claimed that evidence discovered after the trial undermined the credibility of the prosecution’s key witnesses.

Relying largely on Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a Magistrate Judge (“MJ”) issued a Report and Recommendation (“R & R”) recommending that Brand’s ineffective assistance of counsel claims should be dismissed on the merits. The MJ also recommended that Brand’s after-discovered evidence claim be dismissed because the evidence in question was trivial and merely for impeachment purposes. Brand objected to the MJ’s findings, arguing that the MJ erred when s/he applied a sufficiency of the evidence standard and [281]*281relied on the PCRA court’s opinion in rejecting Brand’s ineffective assistance of counsel claims. The District Court, in a lengthy opinion, overruled Brand’s objections, adopted the R & R, and denied Brand’s habeas petition in its entirety. This appeal followed.

II.

Jurisdiction

The District Court had jurisdiction under 28 U.S.C. § 2254. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253. Our review of the District Court’s order is plenary. Pursuant to 28 U.S.C. § 2254(d), a state court’s adverse resolution of a claim of constitutional error provides a basis for federal habeas relief only if the state adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court,” or if it resulted in a decision that “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” See Williams v. Taylor, 529 U.S. 362, 376, 386, 120 S.Ct.

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82 F. App'x 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brand-v-gillis-ca3-2003.