United States District Court, D. Maryland
CATHERINE C. BLAKE, District Judge.
Pending is Barry Lee Hamlett's ("Hamlett") petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Respondents, by their counsel, have filed a response, (Resp., ECF No. 11), to which Hamlett has replied,  (Reply, ECF Nos. 13, 14). After considering the pleadings, exhibits, and applicable law, the court finds a hearing unnecessary. See Local Rule 105.6 (D. Md. 2011); Rule 8, "Rules Governing Section 2254 Proceedings in the United States District Courts;" see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (stating there is no entitlement to a hearing under 28 U.S.C. § 2254(e)(2)).
Hamlett, who is self-represented, is challenging his 2005 convictions in the Circuit Court for Baltimore County, Maryland for attempted first-degree murder, assault, reckless endangerment, and related handgun offenses. (Pet., ECF No. 1, at 1.) The facts of the case are summarized as follows.
At approximately 1:45 a.m. on January 18, 2004, Portia Thompson and Charles Talbert were shot in the Paradise Lounge on Lauren Street in Baltimore City. (Ex. 9 at 2; Ex. 14 at 5.) Shunika Flanagan, a bar patron, observed Hamlett in possession of a black gun. ( Id. ) Flanagan heard five or six shots and saw her friend, Charles Talbert, fall to the floor. ( Id. ) Kevin Smith, who was also present, heard shots and observed Hamlett. ( Id. ) Smith testified that after he heard the shots, he saw Hamlett take "what looked to be a weapon and put[ ] it into the waist of his pant and he walked slowly out the bar." ( Id. ) Smith identified Hamlett to the police as the shooter. (Ex. 14 at 5.) The parties stipulated at trial that Hamlett was prohibited by law from possessing a regulated firearm, having previously been convicted of a disqualifying offense. ( Id. at 6.)
Hamlett was charged with attempted murder, assault, reckless endangerment, and related offenses with respect to Charles Talbert in case number XXXXXXXXX. (Ex. 1.) Hamlett was charged with attempted murder, assault, reckless endangerment, and related offenses with respect to victim Portia Thompson in case number XXXXXXXXX. ( Id. ) Additionally, he was charged with two handgun offenses in case number XXXXXXXXX. ( Id. )
Following a jury trial in the Circuit Court for Baltimore City on May 9-11, 2005, Hamlett was found guilty in case number XXXXXXXXX of attempted second-degree murder, first-degree assault, second-degree assault, use of a handgun in the commission of a felony, and reckless endangerment of Charles Talbert. (Ex. 9 at 1.) In case number XXXXXXXXX, he was found guilty of a handgun violation and reckless endangerment of Portia Thompson. ( Id. ) In case number XXXXXXXXX, he was convicted of two counts of possession of a firearm by a prohibited person. (Ex. 1; Ex. 14 at 2.) On August 5, 2005, the court sentenced Hamlett to 30 years imprisonment for the attempted murder of Talbert, a consecutive 20 years in prison for use of a handgun in the commission of a felony or crime of violence, a concurrent three years in prison for possession of a handgun, a concurrent five years in prison for unlawful possession of a regulated firearm, and two concurrent five-year sentences for reckless endangerment. (Ex. 14 at 2.)
On direct appeal to the Court of Special Appeals of Maryland, Hamlett, by his counsel, raised three questions for review:
1. Did the trial court err in admitting testimony about a witness's fear of Mr. Hamlett?
2. Did the trial court err in denying a motion for mistrial?
3. Did the trial court impose illegal sentences for wearing and carrying a handgun, and reckless endangerment of Charles Talbert?
(Ex. 6 at 2.)
On May 21, 2007, the Court of Special Appeals vacated Hamlett's sentences for wearing and carrying a handgun and reckless endangerment of Charles Talbert, and it affirmed the remaining convictions. (Ex. 9.) Proceeding pro se, Hamlett filed a petition for writ of certiorari to review whether the trial court erred in admitting testimony about a witness's fear of him. (Ex. 10.) The Court of Appeals of Maryland denied certiorari on August 24, 2007. (Ex. 11.)
On October 24, 2007, Hamlett filed for post-conviction relief in the Circuit Court for Baltimore City in cases XXXXXXXXX, XXXXXXXXX, and XXXXXXXXX (CDS possession and intent to distribute). (Ex. 14 at 3.) On August 14, 2008, the Circuit Court granted Hamlett a belated appeal in case XXXXXXXXX. ( Id. ); see supra note 3. On January 13, 2009, the circuit court dismissed Hamlett's petition for post-conviction relief, without prejudice, in light of his pending appeal in case number XXXXXXXXX. ( Id. )
On June 29, 2009, Hamlett filed a petition for post-conviction relief in case number XXXXXXXXX (felony gun possession) only. (Ex. 12.) A hearing on the petition was held on August 27, 2010. (Ex. 13.) Hamlett confirmed for the post-conviction court at the hearing that he had discharged his post-conviction counsel and that he was seeking post-conviction relief only as to case number XXXXXXXXX. ( Id. at 3-4, 8-9, 82.) Hamlett called no witnesses to testify at the hearing. ( Id. ) Hamlett's trial counsel was not called to testify. ( Id. at 21-22, 84).
Hamlett raised the following claims on post-conviction review: A) trial counsel provided ineffective assistance for 1) failing to challenge the sufficiency of the evidence or contest the trial judge's evidentiary rulings, 2) failing to object or move to exclude an illegal identification, 3) failing to ask for clarification of why his objections were overruled after the prosecutor used inadmissible evidence to bolster his witness, 4) failing to request a missing witness instruction, 5) failing to challenge the indictment after the State failed to produce the victim, 6) failing to ask for a mistrial based on the prosecutor's improper comment, 7) failing to object to inadmissible hearsay, and 8) failing to challenge the prosecutor's vindictive prosecution on the basis that the prosecutor reopened the drug case in order to secure a conviction in the shooting case, and B) appellate counsel was ineffective for 1) failing to raise certain issues until the reply brief, and 2) failing to challenge the sufficiency of the evidence. (Ex. 14 at 4-5; see also Exs. 12, 13.)
On January 5, 2011, the Circuit Court of Baltimore City denied post-conviction relief. (Ex. 14.) The post-conviction memorandum and opinion reads in pertinent part:
Petitioner's Petition for Post Conviction relief alleges numerous failures of trial counsel with regard to pre-trial investigation as well as conduct of the trial. Petitioner's allegations are without merit as Petitioner has failed to show that his trial counsel was deficient or that he was prejudiced in any way. The allegations of error are merely bald assertions consisting of defective law and facts, and there is no support in the record for those assertions. This Court will address each of Petitioner's allegations of errors individually.
1. Trial Counsel Engaged in Adequate Pre-trial Investigation and, thus, Was Not Ineffective.
Petitioner alleges that he was denied effective assistance of counsel because trial counsel failed to engage in adequate pre-trial investigation. Specifically, Petitioner alleges that police obtained his arrest warrant relying on a coerced statement from Ms. Pauling. But for Ms. Pauling's false statement, Petitioner argues, police would not have been able to establish probable cause for the arrest warrant. Petitioner also complains that his trial counsel should have called Mr. Talbert to testify so as to fulfill his right of confrontation. Petitioner does not explain how defense counsel should have located the missing witness, Mr. Talbert, or how any advantage would be gained by calling the victim of the shooting attributed to the Petitioner. Petitioner argues that defense counsel failed to request a judgment of acquittal based on insufficiency of evidence, and thus rendered ineffective assistance of counsel.
It is well settled that failure to engage in adequate pre-trial investigation into a defendant's case and defenses can constitute ineffective assistance of counsel. State v. Johnson, 143 Md.App. 173, 192 (2002). However, trial counsel is not ineffective for failing to pursue motions or strategies that have no merit. Harris v. State, 303 Md. 685 (1985). Here, multiple eyewitnesses were present at the scene of shooting. Both Ed Smith and Kevin Smith provided physical descriptions of Petitioner to police, which led to issuance of the arrest warrant. Petitioner's allegation of error is not supported by accurate fact. There was nothing in the record which established a link directly between Ms. Pauling's statement and issuance of the arrest warrant. Given the overwhelming evidence against Petitioner, trial counsel made reasonable professional judgments not to pursue and confront the victim (Talbert) and not to pursue a judgment of acquittal based on insufficiency of evidence because such an action would be futile. Petitioner's allegation is without merit and thus is denied.
2. Trial Counsel Was Not Ineffective for Not Seeking to Exclude an Identification Made by Ms. Flanagan.
Petitioner alleges that he was denied effective assistance of counsel because trial counsel failed to file a motion to exclude an identification made by Ms. Flanagan while he was in the courtroom restrained by shackles. Petitioner contends that the observation and identification was illegal because it was made without the presence of his trial counsel in violation of his Sixth Amendment right. At the hearing, the State disclosed that trial counsel was notified immediately of the circumstances of Ms. Flanagan's observation and identification of Petitioner, and that the State and trial counsel had a discussion of controlling case law on the issue of identification. Trial counsel was aware that both Kevin Smith and Ed Smith had identified Petitioner in photo arrays and he had filed motions to suppress those photo arrays. In view of the totality of identification evidence, counsel elected not to challenge Ms. Flanagan's identification as tainted by seeing Petitioner in shackles in court. Petitioner offers no reason or explanation to rebut the presumption of counsel's sound judgment. Counsel's decision not to challenge Ms. Flanagan's identification was one based on sound professional judgment. Neither prong of the Strickland test of ineffective assistance of counsel is met.
3. Trial Counsel Was Not Ineffective by Not Filing a Motion For Mistrial or Requesting a Cautionary Jury Instruction In Response to Ms. Flanagan's In-court Testimony.
Petitioner contends that trial counsel should have asked for a cautionary jury instruction or a mistrial [after Flanagan expressed fear of Hamlett] and his failure to do so constitutes ineffective assistance of counsel. Petitioner's argument is without merit. Petitioner presents no evidence rebutting the presumption that trial counsel exercised reasonable professional judgment not to request cautionary jury instruction or move for a mistrial. Instead, the record revealed that trial counsel promptly objected at the time Ms. Flanagan made the statement concerning her fears, and trial counsel's timely objection preserved the issue for appellate review on direct appeal. On direct appeal, Petitioner alleged that the trial court erred to admit testimony of Ms. Flanagan about her fear of Petitioner. The Court of Special Appeals found that such evidence was relevant and properly admitted by the trial court. The Court of Special Appeals' opinion confirms that Petitioner's trial counsel acted properly under the circumstances at the time of the trial when he objected. Petitioner's allegation of error fails the deficiency prong of the Strickland test.
At the post-conviction hearing, Petitioner referred to the State's appellate brief in support of his argument that his trial counsel was ineffective by failing to ask for a cautionary jury instruction. The State argued, in return, that such evidence was relevant, and that the prosecutor had undertaken to minimize the risk of unfair prejudice to Petitioner by making clear that Petitioner had never threatened Ms. Flanagan. The State acknowledged that Petitioner could have sought a cautionary instruction, but did not. However, the proper test for ineffective assistance of counsel is not what counsel should have or could have done; rather, the test is whether counsel's representation fell below an objective standard of reasonableness. The relevant passage in the trial transcript (T. 5/11/05, pp. 9-10) reflects that trial counsel acted reasonably and reacted in a manner not to overstate the witness's fear or to provoke concern of any threat by Petitioner especially after the prosecutor had secured Ms. Flanagan's argument that there had been no contact and no actual threat.
4. Trial Counsel Was Not Ineffective by Not Challenging the Indictment After the State Failed to Produce a Victim.
Petitioner alleges that trial counsel rendered ineffective assistance because he failed to challenge the indictment when the State did not produce Mr. Talbert as a witness, and thus deprived him of his constitutional right to confront a witness. The State described that Mr. Talbert had an open violation of probation warrant for a CDS violation and Police had been unable to locate him. Even though Mr. Talbert did not testify at trial, there were multiple witnesses who were present at the club at the time of the shooting and later identified Petitioner as the shooter. In addition, Officer Rick Mayfield testified that he saw Mr. Talbert lying on the floor, in pain, with blood coming from his back, and bullet holes in his back. The combination of testimony from multiple witnesses described how Petitioner committed the crime charged, and the absence of Mr. Talbot [sic] throughout the trial has little or no bearing on the jury finding Petitioner's guilt or innocence. It is apparent that Petitioner's trial counsel exercised his reasonable professional judgment not to demand the production of the missing victim, or to secure the presence of the victim for examination at trial when the victim's injuries had already been fully explained by witnesses.
Petitioner's constitutional right of confrontation is not implicated when the State did not produce Mr. Talbot [sic]. The Confrontation Clause of the Sixth Amendment guarantees an accused in a criminal preceding the right "to be confronted with the witnesses against him." Marshall v. State, 346 Md. 186, 192 (1997) (citing Delaware v. Van Arsdall, 475 U.S. 673, 678, (1986). Thus, a criminal defendant's constitutional right of confrontation was violated when the trial court limited the cross examination of a State witness about matters which affect the witness's bias, interests, or motive to testify falsely. Marshall, at 199. Under the circumstances of this case, Petitioner's constitutional right of confrontation was never implicated because the State did not rely on any testimony of Mr. Talbot [sic] at any stage of its case against Petitioner. Petitioner's allegation of violation of his constitutional right of confrontation is based on defective law, and is baseless.
6. Trial Counsel Was Not Ineffective by Not Filing a Motion for Mistrial After Prosecutor Made Improper Comment.
Petitioner alleges that trial counsel rendered ineffective assistance because he failed to move for mistrial after the prosecutor referred to an argument between Petitioner and Mr. Talbert which was not in the evidence. The trial record reveals that trial counsel did not object to such reference during prosecutor's opening statement, but did raise an objection during prosecutor's closing argument. During prosecutor's closing argument the following exchange occurred:
PROSECUTOR: that night turned into a nightmare when at approximately 1:45 am in the morning, the defendant, Barry Hamlett, decided that he was going to end this argument that he had with Charles Talbert.
MR. LAYE [defense counsel]: ...