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Hardy v. Morgan

United States District Court, D. Maryland

June 11, 2015

MICHAEL ANTONIO HARDY # 310-979, Petitioner,
v.
J. PHILIP MORGAN, et al., Respondents.

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

Pending is Michael Antonio Hardy's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Respondents have filed a response, (Answer, ECF No. 9), to which Hardy has replied, (Reply, ECF No. 11). After consideration of the pleadings, exhibits, and applicable law, the court finds a hearing unnecessary. See Local Rule 105.6 (D. Md. 2014); Rule 8 of the Rules Governing Section 2254 Cases. For the reasons stated below, Hardy's petition will be denied.

BACKGROUND

Hardy, who is representing himself, challenges his 2010 conviction in the Circuit Court for Baltimore County for robbery, second degree assault, and theft (less than $1, 000 value). (Pet. 2, ECF No. 1.) The following is a summary of the facts of his conviction.

On December 19, 2009, Preonca Patell ("Patell") was working as a cashier at the Subway sandwich shop on 400 York Road in Towson, when a man, whom Patell subsequently identified as Hardy, came in through the front door. (Answer Ex. 2, July 26, 2010 Trial Tr. 6-8, ECF No. 9-2.)[1] According to Patell, this man was tall, African American, dressed in all black, wore a hat, and had his hands in his jacket pockets. ( Id. at 10, 21-22.) Patell thought he was pretending to have a weapon in his left pocket, ( id. at 10), so she was "[k]ind of" frightened, ( id. at 13). The man approached her and told her to open the cash register. ( Id. at 9.) When she did, he asked her for all the cash, and she gave him all the cash inside. ( Id. at 11.) Patell was unsure of how much money was in the register.[2] ( Id. at 11, 21, 29.) Once the man received the money, he left the store through the front door and walked south on York Road. ( Id. at 11-12.)

After initially pressing the panic button to no response, Patell called 911. ( Id. at 12.) When the police arrived she told them what had happened and gave a description of the suspect. ( Id. at 13.) Patell testified that the police first drove her along York Road where she was shown "a bunch of guys just on the streets, " none of whom she could identify. ( Id. at 14, 22.) The police officer dropped her off at the Subway shop, but returned shortly thereafter and told her he had someone who fit the description she had given. ( Id. at 14.) According to Patell, they then drove toward Towsontown Boulevard and Bosley Avenue so that she could identify whether this was the same person who had robbed the Subway shop. ( Id. at 14-15). At a distance of about ten feet, Patell identified Hardy. ( Id. at 15-16.)

Hardy was immediately placed under arrest. ( Id. at 55.) On arrival at the police station, he was searched and $87 was found in his right front pocket. ( Id. at 59.) No weapons were found on him. ( Id. ) An officer interviewed Hardy, who, after waiving his Miranda rights, admitted that he had committed the robbery because he needed money. ( Id. at 64-66, 72-73.)

On July 26, 2010, after a bench trial, Hardy was found guilty on all counts. ( Id. at 1-3, 85-86.) On August 19, 2010, Hardy was sentenced to 25 years of imprisonment without parole as a subsequent offender. (Answer Ex. 3, Aug. 19, 2010 Sentencing Tr. 1, 34, ECF No. 9-3.)

Hardy filed a timely appeal, arguing that the trial court erred in sentencing him to 25 years of imprisonment without the possibility of parole pursuant to Md. Code, Crim. Law § 14-101. (Answer Ex. 4, Pet'r's Appeal Br. 2, ECF No. 9-4.) Finding no error, the Court of Special Appeals affirmed Hardy's conviction in an unreported opinion. (Answer Ex. 6, Md. Ct. Spec. App. Op. 2, ECF No. 9-6.) Judgment was entered on October 19, 2011, and the court's mandate issued on November 18, 2011. ( Id. at 11.) Hardy did not seek further review in the Court of Appeals. (Pet. 3.)

Hardy filed a petition for post-conviction relief in the Circuit Court for Baltimore County on February 15, 2012. (Answer Ex. 7, State Post-Conviction Pet. & Supplements 1-4, ECF No. 9-7.) He alleged that Patell changed her testimony and gave false testimony with regard to who took the money out of the cash register and how many times she was in the police car looking for suspects. ( Id. at 1-2.) He further stated that his claims were not waived due to the ineffectiveness of his counsel for failing to raise these claims in his direct appeal. ( Id. at 3.) On May 24, 2012, Hardy filed a supplement to his petition, arguing ineffective assistance of both trial and appellate counsel. ( Id. at 5-6.) Finally, on July 20, 2012, Hardy filed another supplement to his petition. ( Id. at 7-9.) In this last supplement, Hardy added the key claim, for the purposes of the current petition, that the State's Attorney knew Patell had testified falsely regarding how many times she had been taken to look for suspects and that he did nothing to correct the false testimony. ( Id. at 7.)

A hearing on the state post-conviction petition was held in the Circuit Court for Baltimore County on March 5, 2013, during which Hardy withdrew his ineffective assistance of counsel allegations as well as his factual allegation regarding who took the money out of the cash register, thus leaving the number of times a police officer drove Patell around in order to locate and identify a suspect as his only remaining factual allegation. (Answer Ex. 8, Statement of Reasons & Order 2-3, ECF No. 9-8.) Regarding Patell's testimony, Hardy alleged that the State's Attorney knew Patell gave false testimony and did nothing to correct it or bring it to the trial court's attention. ( Id. )

In a detailed and thorough Statement of Reasons and Order dated March 22, 2013, the Circuit Court addressed Hardy's claims of prosecutorial misconduct (by the State's Attorney) and perjury (by Patell), finding that Hardy had waived both claims by failing to raise them in his direct appeal. ( Id. at 3-5, 8-9.) Further, the court found that there was no evidence to indicate the State's Attorney knowingly used perjured testimony. ( Id. at 5-7.) Finally, the Circuit Court found that Patell's allegedly false testimony related to the sufficiency of the evidence, which was not a valid ground for post-conviction relief. ( Id. at 7-8.) Accordingly, the state post-conviction court denied the original state petition and both supplements thereto. ( Id. at 9.)

On February 5, 2014, Hardy filed the present petition for writ of habeas corpus, which presents one claim for the court's review: "The State[']s Attorney knew the witness gave a false ...


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