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Boone v. State

United States District Court, D. Maryland

May 14, 2015

STATE OF MARYLAND, et al., Respondent.


CATHERINE C. BLAKE, 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 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; Local Rule 105.6 (D. Md. 2014). For the reasons to follow, the petition will be denied.

Factual and Procedural History

Timothy Milton Boone was charged with attempted murder, first-degree assault, second-degree assault, use of a handgun in the commission of a crime of violence, and first-degree burglary in the Circuit Court for Prince George's County. (ECF No. 15, Ex. 1 at 3.) After a jury trial, petitioner was convicted of first-degree assault, second-degree assault (which merged into the first-degree assault conviction), and first-degree burglary. ( Id. at 6.) The Court of Special Appeals of Maryland summarized the facts adduced at trial as follows:

The charges in the case arose of events that took place on November 19, 2005. Angela Contee testified that about 6:15 that evening she and her young child were in the upstairs front bedroom of her townhouse at 2754 Iverson Street in Temple Hills, Maryland. Ms. Contee's townhouse was the second unit from the end.
Ms. Contee testified that she was feeding her child when she heard the sounds of someone kicking and banging at her back door and glass breaking. She then heard someone come up the stairs to the second floor. She locked herself in the bedroom and called 911. While talking to the dispatcher, Ms. Contee saw the knob of her bedroom door turn. She heard sirens and then heard the person walk back down the stairs and leave the house.
Officer Clarence Black of the Prince George's County Police Department testified that he responded to Ms. Contee's townhouse for a burglary in process. He was in uniform and drove a marked cruiser. As he approached the front of the townhouse, he "cut off" the car's lights. He exited his car and saw a man, later identified as appellant, come around the corner of the end townhouse toward him. The officer yelled to appellant to "stop, " but he turned and ran to the area behind the townhouse.
Officer Black chased appellant for about 15 to 20 feet before appellant, who was about 10 to 15 feet in front of the officer, turned toward him. Officer Black saw a flash and heard a gunshot. He then pulled his service revolver and fired three rounds. One of the shots struck appellant in the buttocks, and he fell to the ground. Officer Black approached appellant and spotted a shotgun that lay just above his head. The officer told appellant not to move or touch the shotgun. He then called for back-up.
Two back-up police officers testified that, upon arriving at the scene, they saw appellant lying on the ground with a shotgun near the right side of his head. The police collected from the scene the shotgun; shotgun shells, including one that had been fired; a black bag with a brandy bottle in it; and some clothing. Among the clothing was a pair of pants, the pocket of which contained a live shotgun shell.
An expert in fingerprint analysis testified that appellant's fingerprints matched the prints found on the brandy bottle. A firearms expert testified that the shotgun was operable and could only be fired by pulling the trigger. The expert further testified that the shotgun shells were from the same manufacturer and could have been used in the firearm, but there were insufficient markings from which to conclude with one "hundred percent certainty" that the fired shotgun shell had been fired from the shotgun found near appellant.
Detective David Morissette of the Prince George's County Police Department spoke with appellant at the hospital four days after the shooting. He testified that he advised appellant of his rights during that visit and took a recorded statement. The recorded statement was played for the jury and admitted into evidence. Appellant explained in the statement that he was "cutting through" the townhouse yard to a nearby store when he saw the shotgun. He picked it up and then heard someone yell "Freeze." He dropped the gun and ran. The officer then shot him. Appellant denied going into the victim's townhouse and denied drinking any liquor from the brandy bottle.

(ECF No. 15, Ex. 8 at 1-3.)

Petitioner was sentenced on August 4, 2006, to a total term of 45 years imprisonment. (ECF No. 15, Ex. 5 at 11.) He noted a timely appeal raising the following claims in the Court of Special Appeals:

1. Did the trial court err in refusing to ask the jury on voir dire 1) whether anyone would be more inclined to believe the testimony of a police officer, solely because the witness was a police officer, and 2) whether anyone had such strong feelings about the use of a handgun that he or she would be unable to render a fair and impartial verdict in the case?
2. Did the trial court err in instructing the jury that a first degree burglary is the breaking and entering of a dwelling with the intent to commit theft or a crime of violence, when it was only alleged in the charging document that the ...

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