United States District Court, D. Maryland
RANDY T. SHULTZ, # 324-839, Petitioner,
PHILIP MORGAN, Warden, et al., Respondents.
DEBORAH K. CHASANOW, District Judge.
Pending is Randy T. Shultz's ("Shultz") petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Respondents, by their counsel, have filed a response with exhibits (Resp. ECF No. 13), to which Shultz, who is self-represented, has replied. (Reply, ECF No. 16). After considering the pleadings, exhibits, and applicable law, the court determines a hearing is 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)).
Shultz is challenging his convictions in 2004 for armed robbery, attempted theft, and two handgun offenses after a jury trial in the Circuit Court for Prince George's County. (Resp. ECF No. 13, Ex. 4 at 5-9). On December 9, 2004, the Circuit Court sentenced him to serve 55 years of incarceration. (Ex. 5 at 11-12). The facts adduced at trial were summarized by the Court of Special Appeals of Maryland as follows:
The State presented evidence that, in August 2001, appellant robbed four teenagers in Suitland, Maryland. Three of the four victims testified for the State: Robin Yates, her cousin Nikkia Lewis, and their friend Alexander McLeod. Appellant's defense was misidentification. The evidence, viewed in the light most favorable to the State, established the following events.
At 3:00 in the morning in question, Yates and Lewis were standing behind a blue Honda outside of their apartment complex talking to McLeod and Fred Cooper, another friend. Yates noticed a man, later identified as appellant, park a yellow Volvo near them, get out of the car, and walk around a building. The next thing she knew, Yates looked up and saw appellant pointing a black handgun at her and McLeod with a bandanna wrapped around his hand. Yates was about six feet away from appellant; McLeod was about one foot away from appellant, standing between appellant and Yates.
Appellant told Lewis and Cooper to walk toward the back of the car where Yates and McLeod were standing. All victims put their hands in the air, either by instruction or automatically. Appellant quickly told them to put their hands down because it looked like they were signaling the police; they complied. Appellant instructed them to give him their money. Lewis and Cooper handed him some money; Yates and McLeod did not. Lewis gave him a ten-dollar bill, a five-dollar bill, and three one-dollar bills.
Appellant then asked Cooper for his watch. When Cooper protested, appellant hit Cooper on the head with the gun. At that time, Yates, Lewis, and Cooper ran, leaving McLeod behind. Yates and Lewis ran to their apartment where Lewis's mother called the police. A police officer arrived a few minutes later.
When the other three teenagers fled, McLeod backed away from appellant, who had his gun pointed at McLeod. McLeod eventually turned, walked about forty feet away, and hid behind a car. From that position, McLeod watched appellant get into and out of the blue Honda and then walk toward an apartment building. He then observed appellant return to the car and sit inside. A police car, apparently driven by Sergeant Dave Hayes, subsequently passed appellant, after which appellant got out of the car and ran.
By then, Cooper had rejoined McLeod. The two teenagers saw another police car coming toward them. Corporal Michael Ober of the Prince George's County Police Department was driving that car. He stopped and told the two teenagers to get inside. They told the corporal what had happened and that another police car had just driven past appellant. The corporal notified Sergeant Hayes over the radio that he had just driven past the robber.
Sergeant Hayes turned his car around and drove back in the direction from which he came. As the sergeant approached appellant, appellant started walking and then running away from him. The sergeant saw appellant run into and out of the apartment building on Silver Park Drive. Meanwhile, Corporal Ober had returned to where McLeod and Cooper had spotted appellant, and he directed them to point out appellant if they saw him. McLeod spotted appellant and told the officer, "That's him."
Once McLeod and Cooper positively identified appellant as the robber, he was arrested. From appellant's front pocket the police recovered two ten-dollar bills, three five-dollar bills, and four one-dollar bills. The police also recovered a neatly folded $100.00 bill inside appellant's cell phone case.
The blue Honda was processed for fingerprints, and although two fingerprints were recovered, neither matched appellant's. The police discovered that the car was stolen. A K-9 unit, which was brought to the area, discovered a gray bandanna wrapped around a black handgun next to the same apartment building that Sergeant Hayes had seen appellant run into and out of. The gun was loaded with a bullet in the chamber.
The four teenagers were taken to a police station where they each gave written statements and described the robber. Yates, Lewis, and McLeod identified appellant in court as the robber. They described the robber and the gun in a similar fashion, and they testified that they had no doubt in their mind that appellant was the robber. The three teenagers also identified a picture of the gun and the bandanna as that used in the robbery.
Shultz, by his counsel, appealed his conviction to the Court of Special Appeals of Maryland, presenting three questions for review: 1) Did the trial court err in failing to explain the concept of reasonable doubt in its instructions to the jury; 2) Did the court err in failing to provide an identification instruction; and 3) Did the trial court err in considering, for purposes of sentencing, evidence of prior charges not resulting in convictions. (Ex. 6 at 2; see also Ex. 7-8).
Shultz's convictions were affirmed by unreported opinion filed on August 7, 2006. (Ex. 8). Shultz filed a Petition for a Writ of Certiorari in the Court of Appeals of Maryland in which he raised a single question: "Does the failure to explain the concept of reasonable doubt to a jury constitute error which should be reviewed even in the absence of an objection at trial?" (Ex. 9.) The Court of Appeals denied review on November 13, 2006. (Ex. 10).
On March 2, 2007, Shultz filed a Petition for Post-Conviction Relief in the Circuit Court for Prince George's County. On March 12, 2009, the court held a hearing on the Petition. (Ex. 14). The post-conviction court outlined Shultz's claims as: A) ineffective assistance of trial counsel for: 1) failing to obtain complete discovery or bring out at trial that he wanted to provide a statement to the police, 2) failing to object to the State nol prossing counts, 3) failing to ensure that bench conferences were confidential, 4) failing to object to the testimony of Fred Cooper, 5) failing to object to the reasonable doubt instruction, 6) failing to request an instruction on eyewitness identification, 7) failing to object to the sentencing court's consideration of prior bad acts, 8) failing to request a voir dire question regarding handgun crimes, 9) failing to utilize peremptory challenges competently, 10) failing to advise him of his right to remain silent, 11) failing to object to the instruction on direct and circumstantial evidence, 12) failing to object to impeachment evidence, 13) failing to request a missing witness instruction, 14) failing to renew a motion for acquittal at the close of the case, and 15) the cumulative effects of these errors; B) ineffective assistance of appellate counsel for failing to raise on appeal claims: 1) that the police refused to take his statement, 2) that the State improperly nol prossed counts, 3) that the court failed to sequester witnesses, 4) challenging the denial of the judgment of acquittal, 5) that he was not advised of his right to remain silent; 6) challenging the courts instructions on direct and circumstantial and consideration of prior bad acts, and 7) challenging the court's failure to instruct eyewitness identification and missing witnesses; C) trial court error for 1) issuing a defective reasonable doubt instruction, 2) denying him his right of confrontation, 3) failing to sequester witnesses, 4) denying his motion for judgment of acquittal with respect to victim Fred Cooper, 5) failing to advise on direct and circumstantial evidence, 6) failing to issue a missing witness instruction, 7) mishandling his impeachment by way of prior convictions, 8) failing to advise him of his right to remain silent, and 9) improperly instructing the jury on its consideration of his prior convictions. (Ex. 14 at 11-25; see also Ex. 11-13 & 15). The two issues argued by Shultz's post-conviction counsel at the hearing were whether trial counsel rendered ineffective assistance by failing to object to the reasonable doubt instruction and by failing to request an eyewitness identification instruction. (Ex.14 at 29-36). By opinion and order filed on January 4, 2010, the circuit court denied all allegations presented at the hearing. (Ex. 15).
Shultz sought leave to appeal the post-conviction court's decision by alleging trial counsel was ineffective for failing to 1) object to the incomplete reasonable doubt instruction, 2) request an instruction on eyewitness identification, and 3) object to sentencing court's consideration of prior bad acts. (Exhibit 16). The Court of Special Appeals of ...