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Hurt v. Green

United States District Court, D. Maryland

July 28, 2015

THORNE K. HURT, #366-732, Petitioner
KATHLEEN GREEN, et al., Respondents.


DEBORAH K. CHASANOW, District Judge.

On May 6, 2013, [1] the court received the instant 28 U.S.C. § 2254 habeas corpus application filed by Petitioner Thorne K. Hurt attacking his 2010 judgment of conviction for possession of heroin with intent to distribute. ECF No. 1. Respondents filed a limited answer with exhibits, addressing only the issue of exhaustion. ECF No. 9. In response to the court's Order staying proceedings to permit Petitioner to complete the appeal then pending in the state appellate court, ECF No. 10, Petitioner filed a case update. ECF No. 13. Respondents filed a second answer, ECF No. 16, to which Petitioner filed a reply. ECF No. 19. After reviewing the filings, 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 the reasons set forth herein, the court shall dismiss the Petition and deny a certificate of appealability.

Factual and Procedural History[2]

On December 10, 2010, after pleading guilty, Petitioner was convicted in the Circuit Court for Wicomico County for possession of heroin with intent to distribute. ECF No. 1, p. 1.[3] He was sentenced to 14 years imprisonment and restitution. ECF No. 9-2, p. 19. On April 20, 2011, [4] acting pro se, he filed an Application for Leave to Appeal to the Court of Special Appeals, which, on May 10, 2011, was stricken as untimely by the Circuit Court. ECF No. 9-1, pp. 7-8.

Petitioner then filed a pro se Motion to Correct Illegal Sentence, ECF No. 9-3, which was denied by the Circuit Court on June 24, 2011. ECF No. 1, p. 8. He filed a Notice of Appeal and Application for Leave to Appeal the denial of the Motion to Correct Illegal Sentence on July 7, 2011, and July 26, 2011, respectively. Id. Petitioner argued that the lower court erred: 1) in holding that the State did not breach the plea agreement by asking the court to impose the entire 14 year sentence of active incarceration; and 2) in failing to recognize that a criminal defendant must be sentenced upon accurate information. ECF No. 9-4, p. 2. On September 13, 2013, Petitioner filed a motion in the Court of Special Appeals to withdraw that appeal. ECF No. 13, p. 3. The motion was granted, and the appeal dismissed, on May 14, 2014.[5]

On December 27, 2011, Petitioner filed a pro se Petition for Post-Conviction Relief in the Circuit Court, ECF No. 9-5, followed by two pro se amendments to the petition. ECF Nos. 9-6, 9-7. In the interim, counsel had been appointed to represent Petitioner in the post-conviction proceedings. ECF No. 9-1, p. 9. Counsel filed a memorandum clarifying the claims raised in the original petition and amendments thereto, summarizing the issues as: 1) illegal sentence; 2) unknowing and involuntary plea; 3) breached plea agreement; and 4) ineffective assistance of counsel. ECF No. 9-8.[6] A hearing was held on April 19, 2012, ECF No. 9-9, p. 1, and the state petition was denied in an Opinion and Order dated May 18, 2012. Id., p. 8. On June 1, 2012, Petitioner filed an Application for Leave to Appeal the Denial of Post-Conviction Relief to the Court of Special Appeals, raising two issues: 1) the Circuit Court failed to address the due process claim Petitioner had raised, that he was sentenced based on misinformation; and 2) the lower court erred by using extrinsic evidence, not the record of the plea proceeding, to determine the terms of the plea agreement. ECF No. 9-10. The Court of Special Appeals denied the application on April 25, 2013, and its Mandate issued on May 8, 2013. ECF No. 9-11.

As noted above, the current Petition was filed in this court on May 6, 2013. ECF No. 1.

Threshold Considerations


Before a petitioner may seek habeas relief in federal court, he must exhaust each claim presented to the federal court by pursuing remedies available in state court. See Rose v. Lundy, 455 U.S. 509, 521 (1982). This exhaustion requirement is satisfied by seeking review of the claim in the highest state court with jurisdiction to consider the claim. See O'Sullivan v. Boerckel, 526 U.S. 838 (1999); 28 U.S.C. § 2254(b) and (c).[7] In Maryland, this may be accomplished by raising certain claims on direct appeal and other claims by way of postconviction proceedings. Exhaustion is not required if at the time a federal habeas corpus petition is filed petitioner has no available state remedy. See Teague v. Lane, 489 U.S. 288, 297-98 (1989).

Procedural Default

Where a petitioner has failed to present a claim to the highest state court with jurisdiction to hear it, whether it be by failing to raise the claim in post-conviction proceedings or on direct appeal, or by failing to timely note an appeal, the procedural default doctrine applies. See Coleman v. Thompson, 501 U.S. 722, 749-50 (1991) (failure to note timely appeal); Murray v. Carrier, 477 U.S. 478, 489-91 (1986) (failure to raise claim on direct appeal); Murch v. Mottram, 409 U.S. 41, 46 (1972) (failure to raise claim during post-conviction); Bradley v. Davis, 551 F.Supp. 479, 481 (D. Md. 1982) (failure to seek leave to appeal denial of postconviction relief). A procedural default also may occur where a state court declines "to consider the merits [of a claim] on the basis of an adequate and independent state procedural rule." Yeatts v. Angelone, 166 F.3d 255, 260 (4th Cir. 1999).

As the Fourth Circuit has explained:

If a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). A procedural default also occurs when a habeas petitioner fails to exhaust available state remedies and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Id. at 735 n.1.

Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).

If a procedural default has occurred, a federal court may not address the merits of a state prisoner's habeas claim unless the petitioner can show (1) both cause for the default and prejudice that would result from failing to consider the claim on the merits; or (2) that failure to consider the claim on the merits would result in a miscarriage of justice, i.e. the conviction of one who is actually innocent.[8] See Murray v. Carrier, 477 U.S. 478, 495-96 (1986); Breard, 134 F.3d at 620. "Cause" consists of "some objective factor external to the defense [that] impeded counsel=s efforts to raise the claim in state court at the appropriate time." Breard, 134 F.3d at 620 (quoting Murray, 477 U.S. at 488). Even where a petitioner fails to show cause and prejudice for a procedural default, a court must still consider whether it should reach the merits of a petitioner's claims in order to prevent a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 314 (1995).

Framework for Analysis

Section 2254

Section 2254 states that a district court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

The statutory framework of the federal habeas statute sets forth a "highly deferential standard for evaluating state-court rulings." Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Bell v. Cone, 543 U.S. 447, 455 (2005). The standard is "difficult to meet, " and requires courts to give state-court decisions the benefit of the doubt. Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011) (internal quotation marks and citations omitted); see also Harrington v. Richter, 562 U.S. 86, 102 (2011) ("If this standard is difficult to meet, that is because it was meant to be.").

A federal court may not grant a writ of habeas corpus unless the state's adjudication on the merits: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, " or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

A state adjudication is contrary to clearly established federal law under § 2254(d)(1) where the state court "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law, " or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court]." Williams v. Taylor, 529 U.S. 362, 405 (2000). Under the "unreasonable application" analysis pursuant to 2254(d)(1), a "state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). "[A] federal habeas court may not issue the writ simply because [it] concludes in its independent judgment that the relevant state-court decision applied established federal law erroneously or incorrectly." Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Williams, 529 U.S. at 411). "Rather, that application must be objectively unreasonable." Id. Thus, "an unreasonable application of federal law is different from an incorrect application of federal law." Harrington, 562 U.S. at 101 (quoting Williams, 529 U.S. at 410).

Further, under § 2254(d)(2), "a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010). "[E]ven if reasonable minds reviewing the record might disagree about the finding in question, " a federal habeas court may not conclude that the state court decision was based on an unreasonable determination of the facts. Id. (internal quotation marks and citation omitted).

The habeas statute provides that "a determination of a factual issue made by a State court shall be presumed to be correct, " and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e) (1). "Where the state court conducted an evidentiary hearing and explained its reasoning with some care, it should be particularly difficult to establish clear and convincing evidence of error on the state court's part." Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010).


When a petitioner alleges a claim of ineffective assistance of counsel, he must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Representation is deficient if it falls below an objective standard of reasonableness, considering all the circumstances. Id. at 688.

To satisfy the first part of this standard, it must be demonstrated that counsel's performance was not "within the range of competence normally demanded of attorneys in criminal cases." Id. at 687. The standard for assessing such competence is "highly deferential" and has a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 669. A federal court's consideration of ineffective assistance of counsel claims arising from state criminal proceedings is limited on habeas review due to the deference accorded trial attorneys and state appellate courts reviewing their performance. A petitioner must overcome the "strong presumption' that counsel's strategy and tactics fall within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). "There is a strong presumption that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than sheer neglect." Harrington, 562 U.S. at 109 (internal quotation marks and citations omitted); see also Sharpe, 593 F.3d at 383 ("Counsel is not required to engage in the filing of futile motions."). "The standards created by Strickland and § 2254(d) are both highly deferential, ' and when the two apply in tandem, review is doubly' so." Id. at 105 (citations omitted). "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.

The second prong requires the court to consider whether counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable and that there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 690-94. "The benchmark of an ineffective assistance claim must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Id. at 686. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. A determination need not be made concerning the attorney's performance if it is clear that no prejudice would have resulted had the attorney been deficient. See id. at 697.

The principles governing ineffectiveness claims apply in federal collateral proceedings as they do on direct appeal or in a motion for new trial. Id. at 697. Indeed, the presumption that a criminal judgment is final is at ...

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