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Quesenberry v. Bishop

United States District Court, D. Maryland

May 19, 2016

PATRICK J. QUESENBERRY, Petitioner,
v.
FRANK J. BISHOP, JR., and THE ATTORNEY GENERAL OF THE STATEOFMARYLAND, Respondents.

          MEMORANDUM OPINION

          RICHARD D. BENNETT, District Judge.

         On April 14, 2014, [1] Petitioner Patrick J. Quesenberry filed the instant 28 U.S.C. § 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. § 2254(e)(2). For the reasons set forth herein, the Court shall DENY AND DISMISS the Petition with prejudice.

         PROCEDURAL HISTORY

         On 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).[2] 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.[3] (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).

         Quesenberry 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).[4] 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).[5] 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.

         Quesenberry filed the instant Petition on April 14, 2014.[6]

         DISCUSSION

         Quesenberry 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 [7] hearing regarding probable cause. (ECF No. 1, pp. 11, 15, 18.)

         EXHAUSTION AND PROCEDURAL DEFAULT

         The exhaustion doctrine, codified at 28 U.S.C. 2254(b)(1), [8] "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 state court.").

         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)[9] 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.[10]

         Respondents 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, § 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. § 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., § 7-103(a). Therefore, the claims contained in Quesenberry's third ground for relief have been procedurally defaulted.

         When a 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.

         STANDARD OF REVIEW

         An 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. § 2254(a). Section 2254(d) provides that:

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 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).

         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" 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 omitted).

         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, " 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 (2010).

         The 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. § 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.

         I. QUESENBERRY'S CLAIMS

         A. GROUND ONE

         Quesenberry argues that:

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 base system.

(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).

         It is 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 § 2254. See 28 U.S.C. § 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. § 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 § 2254.

         Even if 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).

         The court rejected Quesenberry's DNA claim, stating:

The Petitioner alleged that Maryland Public Safety Code §§ 2-508(a)(1)(iv) and § 2-510, were violated when the unverified DNA evidence was admitted into evidence at trial. The language of § 2-508 of the Maryland Public Safety Code reads, in pertinent part:
On written or electronic request after verification by the Director[11] 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 available to:
(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 enforcement agencies;
(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 § 2-508 lacks merit.
The argument under § 2-510 must also fail. Under § 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 § 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 §§ 2-508 and 2-510. Neither section justifies granting Post-Conviction relief.

(Resp. Ex. 11, pp. 11-12)(footnotes omitted).

         As is clear from the post-conviction court's Statement of Reasons and Order, the court thoroughly analyzed Quesenberry's argument regarding §§ 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. § 2254(d)(1).

         Moreover, 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. § 2254(e)(1). Quesenberry provided no evidence at the post-conviction hearing that a database sample was used at trial, [12] 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. § 2254(e)(1).

         The 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.

         B. GROUND TWO

         Next, "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.).

         At the post-conviction hearing, in response to questions from his ...


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