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Dorsey v. Shearin

United States District Court, Fourth Circuit

May 9, 2013

BOBBY P. SHEARIN, et al., Respondents


JAMES K. BREDAR, District Judge.

Respondents' answer to the above-captioned petition for writ of habeas corpus and petitioner's reply thereto have now been filed, together with exhibits. Accordingly, the petition is ripe for consideration. ECF No. 11 and 14. The court finds no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D. Md. 2011); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.C. ยง2254(e)(2)).


On January 26, 2006, petitioner Marvin Dorsey ("Dorsey") was convicted by a jury in the Circuit Court for Baltimore City of the first-degree murder of Raymond Savoy, use of a handgun in a crime of violence, and carrying a handgun. ECF No. 11 at Ex. 7, pp. 52-53. On April 17, 2006, after a motion for new trial was denied, Dorsey was sentenced to serve life in prison on the murder count plus a consecutive twenty-year term for the handgun offenses. Id. at Ex. 8, pp. 23-25. Evidence produced at trial consisted largely of eyewitness testimony and is summarized below.

Bonnie Banks testified that she observed Dorsey on October 27, 2004, at approximately 4:00 p.m., come out of a house "a couple of doors away from where [she] was standing... with his hand down in his pants." ECF No. 11 at Ex. 5, p. 48. She identified Dorsey in the courtroom as the man she saw and stated that she had seen him on prior occasions, including earlier that day in a store. She recalled commenting that his eyes "were nice" because of their gray color. Id. at pp. 48-49. Banks further testified that Dorsey was walking at a fast pace in the direction of Caroline Street. Shortly after he passed Banks, she heard shots fired. Id. at pp. 49-50. Immediately after hearing the shots, Banks observed Dorsey walking quickly back to the house he had left earlier, again with his hand in the waistband of his pants. Id. at p. 51. Banks further testified that the house, from which Dorsey left and returned, belonged to his mother, who ran a day-care center out of it. Id. In the aftermath of the shooting, Banks testified she heard people screaming and that there were children coming home from school, standing on the curb with their parents. Id. at p. 52. She walked to the scene of the shooting and from a distance of approximately 25 to 30 feet saw the victim lying on the ground in a pool of blood. Id. at pp. 53-54. Banks later identified Dorsey in a photo array consisting of six photographs shown to her by the police in April of 2005. Id. at pp. 54-59. Following Banks's testimony, the prosecution moved to have Dorsey approach the jury so they could observe the color of his eyes. Id. at pp. 63-64. Dorsey's counsel made no objection to the motion. Id. at p. 64.

Lorceeces Cannimore was engaged in a conversation with Raymond Savoy when he was shot and killed. She testified that she had known Dorsey since he was seven years old through living in the same neighborhood and through her job at City Springs Elementary School, where she worked both as a volunteer and as clerical staff. ECF No. 11 at Ex. 5, pp. 66-67. Cannimore testified that she also knew Dorsey's family and that they lived in the two-hundred block of Ballou Court, across from where she lived. Id. at pp. 68-69. She further testified that she knew Dorsey's mother, Marie, well and that she ran a day-care center from her home. Id. at p. 70. Additionally, Cannimore testified that she knew Dorsey's younger brother Gregory. Id.

Cannimore had known Raymond Savoy for approximately five years prior to the day of the shooting. Id. at p. 71. Cannimore saw Savoy coming from his mother's house and testified she was talking to him about her son. Id. at p. 73. The conversation began at Cannimore's front steps and continued as the two walked to Caroline Street, where Savoy hoped to catch a bus. Id. at pp. 74-76. Cannimore testified she was standing approximately three and a half to four feet away from Savoy when Dorsey came out of Ballou Court, stopped, said "psst psst, " and, when Savoy turned around to face Dorsey, pulled a gun out of his sleeve, and shot Savoy. Id. at pp. 78-79. Cannimore further testified that Dorsey fired the gun multiple times and that she had an unobstructed view of both Dorsey and Savoy. Id. at pp. 80-81. Cannimore described the gun as an automatic and stated that when the gun stopped firing, Dorsey continued "clicking" the gun. Id. at pp. 82-83. She testified that Dorsey looked at her and left. Cannimore described her state of mind as fearful and said she stood where she was and screamed. Id. at p. 84. Shortly thereafter, she ran from the scene because she did not "want to see that baby laying there dead like that." Id. at p. 85. She admitted she did not talk to the police[1] until one month later[2] because she was scared, as Dorsey was "still on the loose" and would have no problem killing her since he had already killed Savoy. Id. at p. 91.

Cannimore further testified that she had witnessed the shooting of Dorsey's younger brother Gregory Jackson, known as "Peanut, " on August 20, 2004. Id. at p. 92. She testified that Savoy was present at the scene when Peanut was shot, but did not actually shoot him. Id. Cannimore said there were also other people present with whom Savoy associated when Peanut was shot and that Dorsey, who was also present, ran away after the shooting. Id. at p. 93. She testified that the first time she saw Savoy in the neighborhood again after that shooting was the day he died. Id.

Veronica Saunders was the third eyewitness to testify. She testified that she had known Dorsey for five or ten years and also knew Savoy. Id. at pp. 114-15. Saunders stated she knew Dorsey because she used heroin and cocaine and had purchased drugs from Dorsey. Id. at p. 115. On October 27, 2004, Saunders testified that she was on Caroline Street near Dallas Court after going to the house of a woman who sold loose cigarettes. Id. at p. 117. Saunders testified she was standing near a wall and observed Savoy in the same area; she also said there were a lot of people standing around. Id. at p. 119. Saunders was paying particular attention to Savoy because she had just finished talking to him when Dorsey approached. Id. at p. 137. She indicated that Dorsey came up, said "psst, " and when Savoy turned around, Dorsey started shooting him. Id. at pp. 119-22. Saunders estimated that Dorsey shot Savoy between six and eight times and that she ran away because she was scared. Id. at p. 122. Saunders admitted that at the time of the shooting she did not want to talk to the police and that she was "messed up in the head, " meaning she was hysterical and emotional after witnessing the shooting. Id. at pp. 124-25. When she spoke to the police, Saunders identified Dorsey in a photographic lineup as the man who shot Savoy. Id. at pp. 126-28. Saunders admitted during her direct testimony to two prior theft convictions and a conviction for distribution of controlled dangerous substance. Id. at p. 129. On cross-examination, Saunders admitted she was using heroin and cocaine on a daily basis at the time of the offense. Id. at p. 131.

Karen Sullivan, a firearms examiner for the Baltimore City Police Department, testified regarding her examination of the cartridge casings and metal fragments recovered at the scene of the October 27, 2004, shooting. ECF No. 11 at Ex. 6, pp. 13-33. She testified that the eight cartridge cases recovered at the scene were.45 caliber and were all fired from the same gun. Id. at p. 25. The bullets recovered from Savoy's body were also examined by Sullivan and determined to be.45 caliber bullets. Id. at p. 28. Sullivan testified that both the cartridge cases recovered at the scene and the bullets recovered from Savoy's body had been fired from the same gun. Id. at pp. 32-33. Sullivan brought a prop gun with her to court and used it as an aid in explaining the process of firearm identification, operability, and comparison to the jury. Id. at p. 13. Defense counsel did not object to the use of the prop and centered cross-examination on the possibility that the type of gun that was used would not continue to fire once the bullets were gone as an attempt to discredit Cannimore's testimony that Dorsey kept pulling the trigger after the gun was empty, causing a clicking noise. Id. at pp. 33-48.

Detective Michael Hammel of the Homicide Section for the Baltimore Police Department testified during the prosecution's case in chief. He was assigned as the lead detective to investigate Savoy's homicide. ECF No. 11 at Ex. 6, p. 109. Through Hammel's testimony it was established that Dorsey's mother lived in a house located about 40 feet from the site of the shooting where she runs a day-care center. Id. at p. 114-16. Hammel related that he was familiar with the shooting involving Dorsey's brother and he testified that, when that occurred, he went to the house where Dorsey's mother lived, went upstairs to one of the bedrooms, and found Gregory Jackson (aka Peanut) lying on his bed. Hammel further testified that when he looked out of the window in that bedroom, he had an unobstructed view of the area that became the place where Savoy was shot, approximately 80 to 90 feet away. Id. at pp. 116-17. Without objection by defense counsel, the medical records regarding treatment of Gregory Jackson following his gunshot wound were moved into evidence. Id. at pp. 119-20.

At the end of the State's case, Dorsey was advised of his right to testify and waived that right. Id. at pp. 121-125. There were no witnesses called on behalf of the defense. Id. at p. 125. The jury was charged and returned a verdict of guilty on first-degree murder, use of a handgun in a crime of violence, and carrying a handgun. Prior to sentencing, the court addressed a request Dorsey made to discharge trial counsel. Id. at Ex. 8, pp. 2-12. After questioning Dorsey, determining his education level, and explaining that the sentencing proceeding would not be postponed for purposes of allowing counsel to withdraw and the public defender's office to enter an appearance, Dorsey indicated he wanted counsel to remain in the case. Id. at p. 11. Dorsey was sentenced to life in prison for the murder conviction plus a consecutive twenty-year term for use of a handgun in a crime of violence; the first five years of the twenty-year term were to be served without parole; the carrying offense merged. Id. at pp. 24-25.

In his direct appeal to the Maryland Court of Special Appeals, Dorsey claimed the trial judge erred when she denied Dorsey's request to discharge privately retained trial counsel at sentencing and that he received ineffective assistance of counsel at trial when his attorney failed to object to the prosecutor's comments during rebuttal argument. Id. at Ex. 9. With respect to the first asserted error, Dorsey argued that the trial judge's statement that sentencing was going to proceed despite his stated desire to discharge counsel was improper because she did not ask Dorsey why he wished to discharge counsel. ECF No. 11 at Ex. 9, pp. 6-21. He further asserted it was error for the trial judge to state that the judge to whom Dorsey's letter regarding discharge of counsel was sent was responsible for ruling on his request, and that it had been denied. Id. at p. 19. With respect to the second asserted error, Dorsey claimed the prosecutor's statement during rebuttal argument that "[i]f you think he did it, you're satisfied beyond a reasonable doubt" was objectionable because it lowered the State's standard of proof. Id. at pp. 21-26. He further alleged it was ineffective assistance of counsel when defense counsel failed to object and that no reasonable trial strategy would encompass the failure to object to the statements made. Id. at pp. 26-28.

In an unreported decision, the Court of Special Appeals held that Maryland Rule 4-215(e), governing discharge of an attorney, only applies "up to and including the beginning of trial, but not after meaningful trial proceedings have begun.'" ECF No. 11 at Ex. 11, p. 5 (quoting State v. Brown, 342 Md. 404 (1996)). The appellate court explained that the purpose of the rule was to prevent eleventh-hour requests made as "trial tactics to delay the proceedings or to confuse the jury.'" Id. (quoting Brown, 342 Md. at 415). The court further found that the trial judge acknowledged receiving the letters Dorsey wrote in which he described his "discourse with counsel" and that the judge engaged in a dialogue with Dorsey regarding his request. ECF No. 11 at Ex. 11, p. 8. The court noted that, "[u]ltimately, the judge gave appellant the option to have counsel represent him during the proceeding or to continue pro se. " Id. The court concluded that denial of Dorsey's request to discharge counsel was a proper exercise of the trial court's discretion supported by the proper inquiry. Id. at p. 9. Dorsey's petition for writ of certiorari to the Maryland Court of Appeals was denied. Id. at Ex. 12 and 13.

In his petition for post-conviction relief, Dorsey alleged trial counsel was ineffective by (1) failing to comply with the rules of discovery requiring that the State be provided timely notice of intent to call an alibi witness and depriving Dorsey of the opportunity to call his mother as an alibi witness; (2) failing to seek a plea offer commensurate with counsel's understanding of negotiations with the State of an agreed sentence of life with all suspended but thirty years; (3) failing to apprise Dorsey of the status of the plea offer, failing to seek a more lenient sentence from the court, and invoking the court's prejudice by describing Dorsey as a "hard-head"; and (4) failing to file a motion in limine to exclude impeachable offenses from consideration at trial.[3] ECF No. 11 at Ex. 14, pp. 1-5. In his amended petition, Dorsey alleged that trial counsel was ineffective when he failed to investigate or locate witnesses who would have provided an alibi defense for him; failed to object to Dorsey being required to stand up in front of the jurors so they could see his eyes; failed to object to the firearms expert using a model handgun; failed to zealously cross-examine key witnesses who ...

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