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Wesley v. Hershberger

United States District Court, D. Maryland

April 27, 2015

GARY A. WESLEY, SR., Petitioner,
v.
GREGG HERSHBERGER, et al., Respondent.

MEMORANDUM

JAMES K. BREDAR, District Judge.

A response to the petition for writ of habeas corpus with exhibits was filed in the above-captioned case. The matter is now 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. 2014); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28 U.S.C. ยง 2254(e)(2)). For the reasons to follow, the petition will be denied.

Factual and Procedural History

Gary A. Wesley, Sr., was convicted by a jury of the second degree murder and second degree assault of his wife, Teresa Reed Watson, in the Circuit Court for Baltimore County. ECF No. 10, Ex. 5, pp. 1-3, Ex. 11, pp. 5-6. The facts demonstrated during the trial, as summarized by the Court of Special Appeals of Maryland, are as follows:

On February 2, 2006, appellant killed his wife, Teresa Reed Watson Wesley during a domestic dispute. Evelyn (Joy) Watson, the adopted daughter of the victim from a previous marriage, and Kailani Amerson, a twenty-four-year-old who lived with the Wesleys at their home, testified that earlier in the evening of February 1, appellant was involved in a verbal altercation with Mrs. Wesley and "Andre, " a family friend.
Ms. Amerson testified that appellant accused Andre of "lying to his wife, saying that he was using drugs." When appellant grabbed Andre, Mrs. Wesley separated them. Arrangements were made for appellant to pack up his belongings and "for him to go and stay with Andre." According to Ms. Amerson, both men left the house but returned separately. After another argument broke out between appellant and Mrs. Wesley, Mrs. Wesley called the police. This was the first of three times that the police were summoned to the Wesleys' house that night. The police arrived and then left after things apparently calmed down.
Later, after appellant hit himself in the head, he called the police and complained that his wife was beating him, prompting a second visit by the police. After the police left, according to Amerson, "everybody pretty much went about their normal routine, taking their showers, getting ready for bed." Mrs. Wesley "went back into the bedroom and closed the door." That did not, unfortunately, end the dispute between appellant and his wife.
In fact, it soon took a violent turn. When Mrs. Wesley approached appellant with the pills he had asked her to get for him, appellant "rushed her and she lost her balance and fell in against... her desk that was against the wall by the door" of the room she used as an office. "It looked like he was hitting her, " testified Ms. Amerson. When Amerson tried to assist Mrs. Wesley during this struggle, appellant "flung" her against the wall, "pretty much like a rag doll." Then, Amerson "looked up to see that he was stabbing" Mrs. Wesley with a "kitchen knife." Unable to stop appellant, she "started screaming."
Ms. Watson testified that, at approximately 11 p.m. that night, she awoke to her mother's screams. Ms. Amerson told Watson that Mrs. Wesley had been stabbed and was "bleeding all over." Watson immediately called 911.
After stabbing Mrs. Wesley, appellant left the house. But, in attempting to drive away in the family car, he crashed the vehicle into Joy Watson's car. Although Amerson and others tried to hold the door closed, appellant "kicked it in, " "snatched" a piece of the doorframe off, and "came after" Amerson and others in the house, "scream[ing] he was going to kill us all." Appellant then resumed his assault on Mrs. Wesley, as she lay incapacitated in the office.
When the police arrived, appellant locked himself in the office with his wife and threatened to cut her throat if they entered. The ensuing standoff, during which appellant beat, cut, and stabbed his wife, lasted approximately two hours.
Officer Don Markuso of the Baltimore County Police Department was second on the scene. He testified that he and other responding officers
began to scream and holler, ... police, stop, ... talk to us, tell us what's going on. We could hear all the hitting, the punching, the kicking, the screaming. We could hear the female screaming and it seemed after every... time you would hear that skin on skin, you'd hear this... really bad scream. We could hear the male yelling at her, ... bitch, shut up, you did this to me, this is your fault, you ruined me, you ruined my life, you ruined my marriage and it was just a barrage of this screaming and hitting and punching and it was... a lot of commotion all at one time.
Officer Markuso also heard Mrs. Wesley tell appellant that she loved him and did not want to die. When Mrs. Wesley's voice faded, Markuso asked to enter and help her. Appellant replied, "she's not dead enough yet." Shortly thereafter, appellant opened the door and police officers found Mrs. Wesley dead on the floor. The medical examiner determined that Mrs. Wesley suffered seven stab wounds, 147 cutting wounds, and multiple blunt force injuries.
Testifying in his own defense, appellant complained that Mrs. Wesley repeatedly made false accusations about him to the police. According to appellant, after police left for the second time, Mrs. Wesley called him into her office and then lunged at him with a knife from her desk. After he was able to ultimately wrench the knife from her, he stabbed her in self-defense, he claimed. He explained the "taunting" statements he made to the police before killing Mrs. Wesley because he wanted them to "kick the door down" and kill him, making his wife regret what she had put him through.
In support of appellant's self-defense claim, the defense pointed to evidence that appellant's palm print was found on the blade of the knife and cited an incident on November 27, 1983, when appellant was stabbed by an unidentified assailant with scissors fifteen times on the left side of his neck. Appellant testified that the trauma he experienced from that attack made him feel that he was in "imminent danger" when Mrs. Wesley approached him with a knife.

ECF No. 10, Ex. 5, pp. 2-5 (footnote omitted).

Petitioner was sentenced to a total term of 40 years' incarceration. Id., Ex. 1 & 5. He noted a timely appeal raising the following claims in the Court of Special Appeals:

1. Did the circuit court violate Appellant's right to a speedy trial pursuant to Maryland Rule 4-271?
2. Did the trial court err in refusing to admit Kailani Amerson's prior statement?
3. Did the trial court err in not admitting a relevant transcript into evidence?
4. Did the trial court commit plain error in instructing the jury on reasonable doubt?

Id., Ex. 5, p. 2.

Petitioner's convictions were affirmed on August 14, 2009. Id., Ex. 5. Petitioner filed a self-represented petition for writ of certiorari raising the same four claims. Id., Ex. 6. The petition was denied on November 13, 2009. Id., Ex. 7.

Petitioner filed for state post conviction relief on February 25, 2010. Id., Ex. 1 & 8. The petition, as amended and construed by the post-conviction court, ...


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