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Brock v. Wolfe

United States District Court, D. Maryland

July 13, 2015

FRANKLIN BROCK, #346739 Petitioner,
v.
JOHN WOLFE, WARDEN, et al., Respondents.

MEMORANDUM

PAUL W. GRIMM, District Judge.

Petitioner Franklin Brock 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 & 8. Brock, 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; 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, Brock's petition for writ of habeas corpus IS DENIED AND DISMISSED WITH PREJUDICE.

Background and Procedural History

Brock, who was charged with distribution of cocaine, possession with intent to distribute cocaine, possession of cocaine, possession of marijuana, second-degree assault, carrying a concealed weapon and driving while his privilege to drive a motor vehicle was revoked and suspended, was tried by a jury over a two-day period in the Baltimore County Circuit Court, commencing October 11, 2007. As set forth by the Court of Special Appeals of Maryland, the following facts were established at trial:

Sergeant Matthew Ryan Smith of the Baltimore County Police Department's Community Drug and Violence Interdiction Team in Essex testified as an expert in the area of identification and distribution of narcotics that on 27 April 2007, he was conducting surveillance of the parking lot of Mr. B.'s Lounge because there had been numerous complaints about drug activity and prostitution at that location. He observed a black male wearing a black shirt with the number seven on it, whom he identified as appellant, getting in and out of a Buick automobile that had its hood up every time a car pulled onto the lot. The officer saw a female come out of the bar, meet appellant and hand something to him, and he observed appellant hand something back to the woman. The two parted after about 15 seconds. Sergeant Smith did not see any drugs or money exchanged. Subsequently, he observed a car pull into the parking lot and he saw a person in the car hand something to appellant and appellant hand something to the person in the car. Thereafter, Sergeant Smith observed a yellow cab pull into the parking lot and appellant get into the back seat. The cab driver handed something to appellant and appellant handed something to him before getting out of the cab. Sergeant Smith described each of these three events as hand-to-hand transactions, and said that from his training, knowledge, and experience as a police officer, the individuals he had observed were providing money to appellant in exchange for narcotics.
Subsequently, Sergeant Smith watched appellant get into his car and drive out of the parking lot. The Sergeant then used his radio to give a patrol unit the tag number on appellant's vehicle, and the patrol unit subsequently told Sergeant Smith that the departing vehicle had an insurance violation. Sergeant Smith continued his surveillance by driving behind appellant's vehicle until a police unit could make a stop for the insurance violation.
Although Sergeant Smith saw Detective Michael Nesbitt stop appellant's vehicle, he drove past them. He then heard a dispatcher say that 911 calls had been received indicating that a police officer was involved in a fight on Interstate 695. Sergeant Smith turned his vehicle around and drove back to the place where Officer Nesbitt had stopped appellant.
Detective Michael Nesbitt testified that he was on patrol on 27 April 2007, when he was contacted by Sergeant Smith concerning a subject in a beige Buick bearing tag number 2BPJ86, making drug transactions in the parking lot of Mr. B's. Detective Nesbitt ran the tag number and learned that there had been a lapse of insurance and the registration for that vehicle had been suspended by the Motor Vehicle Administration. Detective Nesbitt stopped the vehicle on the outer loop of Interstate 695, approached the driver, asked him for his license and registration, and was informed by appellant that he did not have a driver's license and that it had been suspended. Detective Nesbitt asked appellant to step out of his vehicle, which he did, handcuffed him, and attempted to move him to the trunk area, away from the traffic, to be searched for weapons. When the detective observed appellant trying to reach into his pockets, he told him not to do so, but appellant persisted. Appellant then forced himself off the car and, using his body pushed back and turned on Detective Nesbitt, and the two began tussling on the side of Interstate 695. A K-9 officer arrived on the scene. At that point, Detective Nesbitt observed a knotted baggie containing a white powdery substance begin to fall out of appellant's pocket along with some money. Detective Nesbitt seized the bag containing what was later identified as cocaine and $200 in cash. In a search incident to the arrest, the detective recovered smoked pieces of a cigar that had residue of green, burned vegetable matter that he believed to be marijuana. He also recovered from under the driver's seat a large kitchen knife and a cell phone. Tests performed by the Baltimore County Forensic Service Laboratory identified the white powdery substance as two grams of cocaine and found trace amounts of marijuana in a cigar butt. An additional cigar was not analyzed.
On cross-examination, Detective Nesbitt testified that a common way to sell cocaine is to break off a piece of cocaine and give it to the purchaser. He acknowledged that cocaine can be sold in vials, but no vials were recovered in this case. He further testified that although $200 in cash was recovered, it was not seized because "at the time we weren't seizing any money under $500." He acknowledged, however, that money would be very valuable in showing that appellant was selling drugs at Mr. B's.
Baltimore County Police Detective Frank Massoni, who is also a member of the Community Drug and Violence Interdiction Team, testified as an expert in the area of identification, packaging, and distribution of narcotics. He opined that "the drugs that were recovered were for distribution." He also testified about a practice referred to as pinching, which involves breaking or pinching off a piece of cocaine for personal use or sale.
Testifying on his own behalf, appellant said he was 27 years old, had a twelfth grade education, and was employed by Taco Bell. On the day in question, he was at Mr. B's shooting pool and having drinks. Eventually, he went outside the bar to the parking lot to meet a friend and, at some point, a woman came from Mr. B.'s to the parking lot and gave him his cell phone, which he had left inside the bar.
The car appellant had been driving, which belonged to his girlfriend, would not start, so he called a cab. Eventually, however, he was able to start the car, and he drove away. After driving on Interstate 695 for about twenty minutes, appellant was pulled over by police and asked for his driver's license and registration. Appellant told the officer that the car belonged to his girlfriend and that his license had been suspended. At trial, appellant stipulated that his license had been both suspended and revoked. Appellant testified that the officer asked him to step out of the vehicle and get behind the car to avoid the traffic on the interstate, and that the officer had him put his hands on the hood of the officer's vehicle, which was hot. When the officer pinned appellant's "whole body on the hood of the car, " appellant began to struggle. According to appellant, he was not trying to resist arrest, but was only communicating to the officer that the hood of the car was hot. Appellant testified that the officer said, "I thought you were black, you liked it." Appellant claimed that the officer was "getting me angry on purpose; I thought he was taunting me." Appellant denied having cocaine in his pocket or any drugs on his person, and he denied knowing that the kitchen knife was in his girlfriend's car.

Brock v. State, No. 2177, slip op. at 1-6 (Md. Ct. Spec. App. June 25, 2009) (unreported), Resp. Ex. 6.[1]

After deliberating less than an hour, the jury sitting in the Circuit Court for Baltimore County found Brock not guilty of distribution of cocaine, but guilty of possession with intent to distribute cocaine, possession of cocaine, possession of marijuana, second-degree assault, carrying a concealed weapon, and driving a motor vehicle on a revoked and suspended driver's license. Oct. 12, 2007 Tr. 57-58, Resp. Ex. 3. The same date of the jury's verdict, Circuit Court Judge Robert E. Cahill, Jr. sentenced Brock to a twenty-year term of incarceration on the possession with intent to distribute cocaine count, with all but fifteen years suspended, the first ten years to be served without the possibility of parole; ten years as to the second-degree assault charge, with all but five years suspended, to be served consecutive to the possession with intent to distribute cocaine count. The terms were to be served consecutively to the last sentence to expire of all outstanding and unserved Maryland ...


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