United States District Court, D. Maryland
ALTIMONT M. WILKS, XXXXX-XXX Petitioner,
WARDEN J. PHILLIP MORGAN Respondent.
JAMES K. BREDAR, District Judge.
The above-captioned 28 U.S.C. § 2254 petition for writ of habeas corpus attacks the legality of petitioner Altimont M. Wilks's ("Wilks") 2006 convictions in the Circuit Court for Frederick County. ECF No. 1. On May 15, 2012, respondent was directed to answer the petition. ECF No. 3. In an initial response, respondent asserted that the petition should be dismissed in its entirety unless Wilks waived review of an unexhausted claim. ECF No. 7. In his reply, Wilks claimed that the "unexhausted" ineffective assistance of appellate counsel claim at issue was in fact raised during the direct appeal process. ECF No. 8.
On July 18, 2013, the court issued a Memorandum and Order which afforded Wilks the option of waiving consideration of the unexhausted claim and proceeding on his remaining claims, recognizing that he may not later seek review of the unexhausted claim without first obtaining authorization from the federal circuit court or, in the alternative, having the court dismiss the entire petition without prejudice with the knowledge that he may be barred from consideration of any of his claims in the future. ECF No. 19. Wilks responded indicating his wish to waive his unexhausted claim. ECF Nos. 20 & 21. Respondent was granted additional time to file a substantive answer to the two remaining exhausted grounds in the petition. ECF No. 22. Respondent's answer followed, along with Wilks's reply. ECF Nos. 25 & 26.
The matter is ready for dispositive review. 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. § 2254(e)(2)). For reasons to follow, the petition will be denied and dismissed with prejudice.
In 2004, Wilks was charged with drug-related offenses in the Circuit Court for Frederick County. ECF No. 7 at Ex. 1, pg. 5. On June 1, 2006, a hearing was held on Wilks's motion to suppress evidence seized by the police. The motion was denied by Judge John H. Tisdale. Id. at Ex. 1, pg. 8.
The facts of the case, as described by the Court of Special Appeals of Maryland, are as follows:
Appellant was arrested at the Quality Inn Hotel in Frederick County, Maryland on the night of July 23, 2004, after officers searching him found a plastic baggie containing crack cocaine in the right front pocket of his jeans. Early the following morning, the police searched the house of appellant's girlfriend, Michelle Biggus, with whom he lived, and found a 9 millimeter handgun and a loaded magazine. Prior to trial, appellant moved to suppress all of the evidence seized by police on July 23 and 24, 2004. At the hearing held on June 1, 2006, appellant challenged the seizure, arguing that the officers illegally stopped him while he was walking down the hallway at the hotel and illegally searched him. Appellant also challenged the validity of the consent given by Biggus to search the house.
After a hearing, the trial court denied appellant's motion to suppress. The court found that the initial encounter between appellant and police at the hotel and the search of his person were consensual. The court also found that while appellant had standing to challenge the search of Biggus' house, the consent given by Biggus was valid.
According to the State's proffer of facts at the suppression hearing, the Frederick Police Department Drug Unit was working undercover at the Quality Inn Hotel on July 23, 2004. At the hotel, the police arrested two people after they bought drugs from a confidential informant. One of the individuals arrested, in an attempt to bargain with the police, told them that he could call a drug dealer named "Thunder" and have him deliver a large quantity of crack cocaine to the hotel. When this information was relayed to officers in the Drug Enforcement Unit, one of the officers recognized the name "Thunder" as a possible nickname for Wilks.
The individual offering the information called Thunder on his cell phone and arranged to have Thunder deliver one half ounce of crack to Room 152 at the hotel. A short time later, the individual received a call on his cell phone from Thunder, who said he was outside of the hotel. A few minutes later Thunder knocked on the door of Room 152. Thunder entered the room and asked for the individual he spoke to on the phone. The confidential informant told Thunder that the individual who phoned him had left, but she had the money. Apparently suspicious, Thunder was unwilling to complete the buy and left the room.
Even though the police were conducting surveillance, they were unable to see the person who knocked on the door of Room 152, nor were they able to hear the conversation that took place between the confidential informant and Thunder. At the suppression hearing, the State proffered that Officer Cassidy and Officer Weaver, of the Frederick County Police, immediately left Room 154, where they were located, and proceeded down the hallway. Once in the hallway, they "observed a black male in the hallway around the corner from Room 152." Cassidy approached the black male, later identified as Wilks, and Wilks stated, "That ain't me, I'm not with that shit." Cassidy then asked Wilks for his identification, and Wilks produced a Maryland driver's license with the name Alimont [sic] Marks Wilks on it. Weaver then asked Wilks if he could search him for drugs. Wilks replied, "Yes, go ahead." Weaver then searched Wilks and found a plastic baggie containing crack cocaine inside Wilks' right front pocket. Wilks was then arrested.
After he was arrested, he told the police that his girlfriend Michelle Biggus had driven him to the hotel, but that "she was not involved in this." The police went to the car to speak to Biggus, and with her consent, followed her to her house and searched it. In an upstairs bedroom that was used exclusively by Wilks, the police found a ...