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Robert Lowe v. Kathleen Green

April 18, 2013

ROBERT LOWE,
PETITIONER,
v.
KATHLEEN GREEN, ET AL.,
RESPONDENTS.



The opinion of the court was delivered by: James K. Bredar United States District Judge

MEMORANDUM

Now before the court is a petition for habeas corpus relief filed by Robert Lowe (ECF No. 1), respondents= answer thereto (ECF No. 10) and petitioner's reply (ECF Nos. 13 & 14). After review of these documents, the court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts.For the reasons to follow, the petition will be denied and dismissed with prejudice.

Factual and Procedural History

Petitioner was charged in the Circuit Court for Wicomico County with several drug related offenses. On March 12, 2007, a hearing was held on petitioner's motion to suppress evidence seized by law enforcement authorities. ECF No. 10, Ex. 2. The motion was denied. Id. On April 11, 2007, petitioner was tried before a jury. The facts developed at trial as recounted by the Court of Appeals of Maryland follow:

At the jury trial held on April 11, 2007, Cpl. King's testimony was consistent with his testimony at the suppression hearing. The State also called Trooper Elin and Sergeant Jason Yankalunas ("Sgt. Yankalunas") of the Salisbury Police Department to corroborate the actions of the police at the scene of the arrest. Trooper Elin testified that, upon his arrival, he saw Lowe exit the vehicle and run. Trooper Elin chased Lowe on foot and apprehended him behind the residence at 606 Truitt Street. Trooper Elin also recovered the brown paper bag, along with seven individual bags containing powder and crack cocaine.

Lowe and the passenger were placed under arrest. According to Cpl. King, a search of Lowe incident to arrest yielded "$218.15 of U.S. currency and a Motorola Nextel cell phone." Further, the contents of the bags were examined and found to be "174.7 grams of crack cocaine and 69.1 grams of powder cocaine." Sgt. Yankalunas, who testified as an expert in narcotics valuation, identification and investigation, and the common practices of users and dealers of controlled dangerous substances, stated that the street value of the crack cocaine seized was between $3,000 and $6,000, while the value of the powder cocaine was between $2,000 and $6,000. Sgt. Yankalunas also opined that the amount of cocaine seized was not consistent with personal consumption. No one testified on behalf of Lowe either at the suppression hearing or at the jury trial.

Id., Ex. 7, pp. 3-4.

Petitioner was convicted of possession of cocaine with intent to distribute, possession with intent to distribute a large amount of cocaine, possession of cocaine, possession of crack cocaine with the intent to distribute, and possession of crack cocaine. Id., Ex. 3, pp. 219-22. He was sentenced, on May 18, 2007, to a 20-year term of incarceration, the first 10 years to be served without parole. Id., Ex. 4, pp. 39-43.

Petitioner noted a timely appeal wherein he raised the following claims:

1. Did the trial court err in denying petitioner's motion to suppress? and

2. Did the trial court err in sentencing petitioner as a subsequent offender? Id., Ex. 5, p. 1.

Petitioner's convictions were affirmed on March 17, 2009. Id., Ex. 7. Petitioner's request for further review of his Fourth Amendment claims by way of petition for writ of certiorari filed in the Court of Appeals of Maryland was denied on June 19, 2009. Id., Ex. 8-10.

While petitioner's direct appeal was pending, he instituted state post-conviction proceedings. Id., Ex. 1 & 11. In a petition filed on June 12, 2007, he argued ineffective assistance of trial counsel for failing to (1) communicate with him adequately and devise an effective strategy; (2) cross-examine witnesses properly; and (3) challenge the State's evidence through suppression hearings. Id., Ex. 11 & 12. On September 8, 2010, petitioner filed a motion to correct illegal sentence. Id., Ex. 1. A hearing was held on October 7, 2010, to consider the claims raised in both the post-conviction petition and motion to correct illegal sentence. On November 23, 2010, the court entered an opinion denying relief. Id.

Petitioner, pro se, filed an application for leave to appeal the adverse ruling of the post-conviction court. He alleged that (A) trial counsel was ineffective for failing to (1) prepare an effective defense; (2) have the canine officer testify at the suppression hearing; (3) have all evidence fingerprinted; and (4) investigate the relevant sentencing statute; (B) his sentence was illegal because he was sentenced under the wrong statute; and (C) the post-conviction court erred by not replacing the prosecutor who sent him a disparaging letter. Id., Ex. 1 & 13. Petitioner failed to pay the filing fee. He was notified by the court of this deficiency but failed to cure it and, for that reason, the court struck ...


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