United States District Court, D. Maryland
PATRICK J. QUESENBERRY, Petitioner,
FRANK J. BISHOP, JR., and THE ATTORNEY GENERAL OF THE STATEOFMARYLAND, Respondents.
RICHARD D. BENNETT, District Judge.
April 14, 2014,  Petitioner Patrick J. Quesenberry
filed the instant 28 U.S.C. Â§ 2254 habeas corpus application
attacking his 2009 convictions for attempted rape and related
offenses and burglary. (ECF No. 1). Respondents filed an
Answer to the Petition, arguing that the Petition does not
state a basis for relief and should be denied, without a
hearing, on that basis. (ECF No. 4). Quesenberry filed a
Reply to Respondent' Answer (ECF No. 5) and,
subsequently, a Second Reply (ECF No. 20). After reviewing
these papers, the Court finds no need for an evidentiary
hearing. See Rule 8(a), Rules Governing Section
2254 Cases in the United States District Courts; see
also 28 U.S.C. Â§ 2254(e)(2). For the reasons set forth
herein, the Court shall DENY AND DISMISS the Petition with
February 24, 2009, after a bench trial in the Circuit Court
for Wicomico County, Quesenberry was convicted of multiple
counts of burglary, attempted rape, and related sexual
offenses. (ECF No. 1, pp. 1-2; Resp. Ex. 4, pp. 225-26,
228-29). He was sentenced to life plus ten
years in prison. (ECF No. 1, p. 1). Quesenberry appealed his
convictions to the Court of Special Appeals of Maryland,
raising four grounds for relief. (ECF No. 1, p. 2; Resp.
Ex. 6). The Court of Special Appeals affirmed the judgments
in an unreported opinion dated February 10, 2011, and the
court's Mandate issued on March 14, 2011. (ECF No. 1, pp.
2, 4; Resp. Ex. 8). Quesenberry did not seek further review.
(ECF No. 1, p. 4).
filed a pro se petition for post-conviction relief
in the circuit court on January 25, 2012. (ECF No. 1, pp. 4,
6; Resp. Ex. 11, p. 3). On. March 29, 2012, he filed a
counseled amended/supplemental petition and, subsequently,
five additional pro se amended/supplemental
petitions. (ECF No. 1, pp. 6-8; Resp. Ex. 9; Resp. Ex. 11,
pp. 3-4). After hearing, the circuit court
denied the petition on April 1, 2013. (Resp. Ex. 11).
Quesenberry filed an application for leave to appeal the
denial to the Court of Special Appeals, (Resp. Ex. 12), which
summarily denied the application on February 21, 2014, (Resp.
Ex. 13). The appellate court's Mandate issued on March
24, 2014. Id.
filed the instant Petition on April 14, 2014.
presents three claims for this Court's review: first,
that he was denied due process because the DNA Collection Act
was circumvented; second, that his due process rights under
the Sixth and Fourteenth Amendments were violated because he
was denied compulsory process of obtaining witnesses in his
favor due to the circuit court's denial of his motion to
suppress; and third, his Fourth, Fifth, and Fourteenth
Amendment rights were violated because he was arrested
without probable cause, all evidence obtained was illegally
used at trial, and he was denied a Franks
hearing regarding probable cause. (ECF No. 1, pp. 11, 15,
AND PROCEDURAL DEFAULT
exhaustion doctrine, codified at 28 U.S.C. 2254(b)(1),
"is principally designed to protect the state
courts' role in the enforcement of federal law and
prevent disruption of state judicial proceedings. Under our
federal system, the federal and state courts [are] equally
bound to guard and protect rights secured by the
Constitution." Rose v. Lundy, 455 U.S. 509, 518
(1982)(alteration in original)(internal citations and
quotation marks omitted). Moreover, "it would be
unseemly in our dual system of government for a federal
district court to upset a state court conviction without an
opportunity to the state courts to correct a constitutional
violation...." Id. Thus, the Rose
Court cautioned litigants, "before you bring any claims
to federal court, be sure that you first have taken each one
to state court." Id. at 520; see also
O'Sullivan v. Boerckel, 526 U.S. 838, 839
(1999)("Federal habeas relief is available to state
prisoners only after they have exhausted their claims in
O'Sullivan, the Supreme Court stated:
"To... protect the integrity' of the federal
exhaustion rule, we ask not only whether a prisoner has
exhausted his state remedies, but also whether he has
properly exhausted those remedies, i.e.,
whether he has fairly presented his claims to the state
courts." 526 U.S. at 848 (internal citation omitted);
see also id. at 844 ("Section
2254(c) requires only that state prisoners
give the state courts a fair opportunity to act on
their claims."). The inquiry, then, is "[w]hether a
prisoner who fails to present his claims in a petition for
discretionary review to a state court of last resort has
properly presented his claims to the state
courts.... Because we answer this question no, ' we
conclude that [petitioner] has procedurally defaulted his
claims." Id. at 848. Stated differently,
"state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process." Id. at 845. The
O'Sullivan Court noted, however, that:
In this regard, we note that nothing in our decision today
requires the exhaustion of any specific remedy when a State
has provided that that remedy is unavailable. Section
2254(c), in fact, directs federal courts to consider whether
a habeas petitioner has " the right under the law of
the State to raise, by any available procedure, the
question presented." (Emphasis added.) The exhaustion
doctrine, in other words, turns on an inquiry into what
procedures are "available" under state law. In sum,
there is nothing in the exhaustion doctrine requiring federal
courts to ignore a state law or rule providing that a given
procedure is not available.
Id. at 847-48.
argue that Quesenberry's third ground for relief, that
his rights were violated because he was arrested without
probable cause, all evidence obtained was illegally used at
trial, and he was denied a Franks hearing regarding
probable cause, is unexhausted. (ECF No. 4, pp. 11, 19).
Quesenberry acknowledges that the claim has not been
presented to the state courts. (ECF No. 1, p. 10). As already
noted, Â§ 2254(c) provides that "[a]n applicant shall not
be deemed to have exhausted the remedies available in the
courts of the State, within the meaning of this section, if
he has the right under the law of the State to raise, by any
available procedure, the question presented." 28 U.S.C.
Â§ 2254(c). It appears that Quesenberry is precluded from
doing so now, because under Maryland law a petitioner may
bring only one petition for post-conviction relief.
See Md. Code Ann. Crim. Proc., Â§ 7-103(a).
Therefore, the claims contained in Quesenberry's third
ground for relief have been procedurally defaulted.
claim is procedurally defaulted, 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
fundamental miscarriage of justice, i.e., the conviction of
one who is actually innocent. See Murray v.
Carrier, 477 U.S. at 495-96 (1986). "Cause"
consists of "some 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 615, 620 (4th Cir. 1998). Even when 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). Whether Quesenberry has
demonstrated cause and prejudice for failing to present the
claims to the state courts, or that a fundamental miscarriage
of justice will occur if this Court does not address the
claims, will be discussed infra.
application for writ of habeas corpus may be granted only for
violations of the Constitution, laws, or treaties of the
United States. 28 U.S.C. Â§ 2254(a). Section 2254(d) provides
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(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:
(2) resulted in a decision that was based on a unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. 2254(d). The statute sets forth a "highly
deferential standard for evaluating state-court rulings,
Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and
is "difficult to meet, " Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
adjudication is contrary to clearly established federal law
under Â§ 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" under 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 v. Richter, 562 U.S. 101
(2011)(quoting Yarborough.v Alvarado, 541 U.S. 652,
664 (2004)). Thus, "an unreasonable application of
federal law is different from an incorrect application of
federal law. Id. at 785 (internal quotation marks
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, "
id., a federal court may not conclude that the state
court decision was based on an unreasonable determination of
the facts, id. "[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
habeas statute provides that "a determination of a
factual issue made by a State court shall be presumed to be
correct." 28 U.S.C. Â§ 2254(e)(1). "The applicant
shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence."
Id. "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). This is especially true where the state court has
"resolved issues like witness credibility, which are
factual determinations' for purposes of Section
2254(e)(1)." Id. at 379. Quesenbery's
claims will be examined under this framework.
Petitioner was denied due process because the DNA Collection
Act, Public Safety Art. Sections 2-508 and 2-510 were
circumvented. The DNA results were not verified by the
Director that a match was made in [the] statewide DNA data
(ECF No. 1, p. 11). The result, Quesenberry stated in his
April 30, 2012 amended/supplemental state petition, was a
wrongful conviction. (Resp. Ex. 9; Resp. Ex. 11, p. 11).
clear that Quesenberry is alleging a violation of state law,
not a federal constitutional or statutory violation. As such,
the claim is not cognizable under Â§ 2254. See 28
U.S.C. Â§ 2254(a) (noting 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."); id. Â§ 2254(d) ("An
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated
on the merits in State court proceedings unless the
adjudication of the claim- (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."). Quesenberry states that his first claim
of error is "based on "Due Process Grounds, "
(ECF No. 1, p. 9), and argued at the January 31, 2013,
hearing that he was denied due process of law because
"the procedures weren't followed under the rules,
" (ECF No. 13-1, p. 57), in that the DNA used at trial
was not verified, id. at 36, 56-57. The mere
reference to due process in the context of an alleged
violation of Maryland laws and/or rules, however, is not
enough to bring the claim within the ambit of Â§ 2254.
cognizable, the claim would fail on the merits. Quesenberry
presented the identical claim to the post-conviction court in
a pro se amended/supplemental post-conviction
petition filed on April 30, 2012. (Resp. Ex. 9; Resp. Ex. 10,
p. 2). After noting that this petition was filed after his
counseled petition and was not signed by counsel, in
violation of Maryland court rules, the circuit court stated
that it would, nonetheless, consider all allegations raised
in Quesenberry's multiple petitions other than those
withdrawn in open court. (Resp. Ex. 11, p. 2).
court rejected Quesenberry's DNA claim, stating:
The Petitioner alleged that Maryland Public Safety Code Â§Â§
2-508(a)(1)(iv) and Â§ 2-510, were violated when the
unverified DNA evidence was admitted into evidence at trial.
The language of Â§ 2-508 of the Maryland Public Safety Code
reads, in pertinent part:
On written or electronic request after verification by the
Director that a match has been has been made
in the population data base, the typing results and personal
identification information of the DNA profile of an
individual in the statewide DNA data base system may be made
(i) federal, State, or local law enforcement agencies;
(ii) crime laboratories that have been approved by the
Director and that serve federal, State, and local law
(iii) a State's Attorney's office or other
prosecutorial office; and
(iv) a person participating in a judicial proceeding in which
the data base information may be offered as evidence.
The Petitioner has misconstrued this section to argue that,
absent a verification of the test by the Director, results
are not admissible. The plain language of the statute does
not set forth such a requirement. Rather, the statute
provides that, once the Director has verified a match, the
enumerated individuals and entities may make a written or
electronic request to have the results made available.
Therefore, the allegation under Â§ 2-508 lacks merit.
The argument under Â§ 2-510 must also fail. Under Â§ 2-510, a
DNA data base match can only be used to establish probable
cause, but cannot be used as direct evidence at trial unless
confirmed by additional testing. In this case, Jennifer
Cline, the State's expert witness testified that she
matched the "... known oral sample of the
Petitioner... to the evidence collected the crime
scene." In other words, the DNA swab voluntarily given
by the Petitioner was matched to the DNA taken from the crime
scene. This was not a data base match. There was no need to
resort to the data base, as there was a sample from the crime
scene and a sample obtained from the Petitioner. This
evidence is plainly admissible and does not invoke Â§ 2-510,
which concerns matching DNA found at a crime scene to the
data base, not to a voluntarily given sample.
In sum, the Petitioner has misconstrued Â§Â§ 2-508 and 2-510.
Neither section justifies granting Post-Conviction relief.
(Resp. Ex. 11, pp. 11-12)(footnotes omitted).
clear from the post-conviction court's Statement of
Reasons and Order, the court thoroughly analyzed
Quesenberry's argument regarding Â§Â§ Sections 2-508 and
2-510 of the DNA Collection Act. Id. It found that
Quesenberry had misconstrued the above sections of the act.
Id. at 12. There is no mention of a federal
constitutional or statutory violation in the state
court's opinion, id. at 11-12, nor did
Quesenberry make any such argument before that court, (ECF
No. 13-1). "It is not the province of a federal habeas
court to reexamine state court determinations on state-law
questions." Oken v. Nuth, 64 F.Supp.2d 488, 500
(D. Md. 1999)(quoting Estelle v. McGuire, 502 U.S.
62, 67-68 (1991)). Therefore, there is no basis for relief
pursuant to 28 U.S.C. Â§ 2254(d)(1).
as noted above, the circuit court found, based on the
testimony of the state's expert witness, that the DNA
swab voluntarily given by the Petitioner was matched to the
DNA taken from the crime scene, not to the DNA database
sample taken as a result of his prior conviction. (Resp. Ex.
11, pp. 6, 12.) A state court's factual findings are
presumed to be correct. 28 U.S.C. Â§ 2254(e)(1). Quesenberry
provided no evidence at the post-conviction hearing that a
database sample was used at trial,  and the circuit
court found otherwise. (Resp. Ex. 11, p. 6.). Nor has he
provided any evidence to this Court which would disprove the
circuit court's finding. (ECF No. 1; ECF No. 5).
Therefore, he has not met his burden of rebutting the
presumption of correctness of that finding. 28 U.S.C. Â§
flaw in Quesenberry's argument, as the circuit court
found, is that no database DNA was used. It is clear from the
trial testimony that the DNA used at trial was taken from the
sample taken from Quesenberry's saliva found on the
victim and the buccal swab taken from Quesenberry. (Resp. Ex.
4, pp. 169-93). The statute, therefore, was not implicated.
There is no reason to disturb the post-conviction court's
conclusions, and, as a result, Quesenberry's first claim
for relief must fail.
"Petitioner alleges his due process rights were violated
under the 6th and 14th amendments because: Petitioner was
denied Compulsory process of obtaining witnesses in his favor
due to the Court's order denying his motion to
suppress." (ECF No. 1, p. 15). In his Reply, Quesenbery
states: "Petitioner's Constitutional Rights [were]
violated under Ground Two in his Petition because facts show
that his witness's testimony, which is evidence to
support his defense on the contested issue was not considered
by the trier of fact at his trial and appeal in this
case." (ECF 5, p. 3.).
post-conviction hearing, in response to questions from his