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Moore v. Green

United States District Court, D. Maryland

May 7, 2015

RAY LAMONT MOORE, #346247, Petitioner,
v.
WARDEN KATHLEEN GREEN, et al., Respondents.

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

Petitioner Ray Lamont Moore ("Moore") seeks habeas corpus relief pursuant to 28 U.S.C. § 2254, attacking the constitutionality of his 2007 convictions in the Circuit Court for Baltimore County. ECF No. 1. Respondents were directed to respond to the Petition and have done so. ECF Nos. 2 & 6. Moore, who was afforded the opportunity to file a Reply, has not done so. See ECF No. 2. This matter has been fully briefed. Upon 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. § 2254(e)(2)). For reasons that follow, Moore's Petition for writ of habeas corpus IS DENIED AND DISMISSED WITH PREJUDICE.

Background and Procedural History

Moore's two-day trial was held before a jury in the Baltimore County Circuit Court in April of 2007. As set forth by the Court of Special Appeals of Maryland, the following facts were established at trial:

The Circuit Court for Baltimore County issued a search and seizure warrant on January 24, 2006, for the search of "[t]he person known as Ray Ray, ' a black male described as being in his 20's with a medium build" and "[a] silver 4-door Kia with Maryland registration MPC835" for drugs, weapons, and drug paraphernalia. Probable cause to issue the warrant was based upon the affidavit of Detective C. M. Toland and Detective Steven Sodd of the Baltimore County Police Department.
In that affidavit, the detectives stated that a confidential informant had informed them that appellant "sells crack cocaine in Baltimore County." According to the informant, "Ray Ray [could] be called on his cell phone, ... and [he] will come out to sell crack cocaine, driving a silver 4-door Kia with Maryland registration MPC 835." The informant also advised that "he/she has observed Ray Ray talking about having guns and actually observed what he/she believed was a handgun in Ray Ray's silver Kia on one occasion."
The detectives affirmed that "[the informant] has provided information in the past which has lead [sic] to the successful recovery of narcotics in quantities that indicate an intention to distribute same and have led to several arrests; therefore, [the detectives] deem [the informant's] information reliable." They also stated that, in January, they had set up and executed a "controlled purchase of crack cocaine from Ray Ray." The informant arranged a meeting with appellant, while under surveillance by the detectives, to purchase cocaine with money given to the informant by the detectives. Appellant drove the described vehicle to the arranged meeting location where he sold cocaine to the informant.
On January 25, 2006, at 7:00 p.m., while driving a silver Kia in Baltimore County, appellant was stopped by the Baltimore County police for the purpose of executing the search warrant. After "a search of [appellant] at the scene there per his outer-garments, his clothing, " and a search of the vehicle produced no drugs or paraphernalia, Detective Toland took appellant to the local police precinct. In a private room and in the presence of the detective and another male police officer, appellant was directed to take off his clothes, bend over, and spread the cheeks of his buttocks. When he did, the detective "observed some plastic bag piece sticking out of his butt." Detective Toland "at that point... removed the plastic bag which contained two plastic baggies." One of those bags contained eleven baggies of cocaine and the other contained ten baggies of heroin.
Appellant moved to require the State to produce the identity of the informant and to suppress the evidence recovered. Both motions were denied. Details of the motions hearing are set out in the Discussion section of this Opinion.
Trial took place on April 16 and 17, 2006. At trial, Detective Toland testified that, according to the officers who had stopped appellant, when appellant was stopped, he was observed "bending over in the vehicle with his hands tucked around his body." He refused to exit the vehicle, and a window had to be broken to remove him. Detective Toland was told that a cell phone was recovered in a search of appellant's vehicle, and that appellant had less than $200 on him.
Detective Toland was qualified and accepted by the court as an expert in the detection, sale, and packaging of narcotics. He testified that, in his opinion, each of the eleven baggies of crack cocaine had an approximate street value of $40 and each of the ten baggies of heroin had an approximate street value of $20. He opined that the amount of narcotics recovered, the two different types, and the way that the narcotics were packaged indicated an intent to distribute the drugs.
Detective Toland acknowledged that appellant said that he had a "bad" drug problem and that the drugs were for his personal use. Detective Toland, however, observed no visible indications of drug use on appellant's body.
The State's chemist testified that the drugs recovered from appellant tested positive for cocaine and heroin. The total weight of the cocaine was 4.4 grams and the total weight of the heroin was 1.4 grams.
Appellant did not testify or otherwise offer evidence.

ECF No. 6, Ex. 8 at pgs. 1-4.

Based on the evidence presented at trial, a jury sitting in the Circuit Court for Baltimore County found Moore guilty of possession of both heroin and cocaine with the intent to distribute. Id., Ex. 5, Tr. at pgs. 149-152. On September 26, 2007, Moore was sentenced by Circuit Court Judge Patrick Cavanaugh as "subsequent offender" to a total twenty-five year term. Id., Ex. 1 at pgs. 2-3; Ex. 4, Tr. at pgs. 14-15.

Moore filed a direct appeal to the Court of Special Appeals of Maryland through counsel, raising the following grounds: (1) the trial court erred in denying Moore's motion to suppress evidence discovered during a strip search; (2) the trial court erred in denying Moore's request to compel the State to reveal the identity of the confidential informant; and (3) the evidence was insufficient to sustain Moore's conviction for possession with intent to distribute CDS. ECF No. 6, Exs. 5-7.

On October 28, 2010, the Court of Special Appeals of Maryland issued a reported opinion which affirmed Moore's drug convictions. Id., Ex. 8; see also Moore v. State, 195 Md.App. 695, 7 A.3d 617 (Md.App. 2010). On February 22, 2011, the Court of Appeals of Maryland denied Moore's petition for writ of certiorari. Id., Exs. 9 & 10.

On December 13, 2011, Moore filed a post-conviction petition in the Circuit Court for Baltimore County. Id., Ex. 11. As supplemented, argued, and litigated, Moore raised the following grounds: (A) trial counsel was ineffective due to his failure to (1) conduct an adequate pre-trial investigation of the facts and evidence in the case; (2) adequately cross-examine Detective Toland about the arrest and detention of Moore prior to his transport to the Baltimore County Police Department precinct and subsequent trip and cavity search; (3) object to Detective Toland's hearsay testimony regarding Moore's actions during the Swat Team's stop of Moore; (4) present an effective argument for revealing the identity of the confidential informant; (5) object or move for a mistrial based on the prosecutor's failure to disclose an arrest report in violation of Brady ;[1] (6) call rebuttal witnesses at the suppression hearing; and (7) seek appropriate relief with respect to a sleeping jury foreman; (B) appellate counsel was ineffective for failing to raise an appellate claim regarding a sleeping juror; and (C) the prosecutor committed a Brady violation by failing to disclose Detective Toland's arrest report. Id., Exs. 11-12.

A hearing on Moore's post-conviction petition was held on February 6, 2013. Id., Exs. 1 & 13. On March 5, 2013, Circuit Court Timothy J. Martin denied post-conviction relief. Id., Ex. 13. Moore's application for leave to appeal the ruling was summarily denied by the Court of Special Appeals on January 15, 2014, with the intermediate appellate court's mandate issued on February 18, 2014. Id., Exs. 14 & 15.

Affording his self-represented petition a liberal construction, Moore raises the following grounds for federal habeas corpus review: (A) trial court error in denying Moore's motion to suppress the evidence discovered during a strip search; (B) ineffective assistance of trial counsel;[2] and (C) prosecutorial misconduct for failing ...


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