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Brown v. Bishop

United States District Court, D. Maryland

October 6, 2016

MICHAEL ANTHONY BROWN, #404343 Petitioner,
v.
FRANK BISHOP, et ah, Respondents.

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.

         Petitioner Michael Anthony Brown (hereinafter referred to as "Brown") seeks habeas corpus relief pursuant to 28 U.S.C. § 2254, attacking the constitutionality of his 2012 conviction in the Circuit Court for Harford County. ECF Nos. 1 & 4. This matter has been fully briefed. ECF Nos. 5, 8, & 10. 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 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 reasons that follow, Brown's Petition of habeas corpus IS DENIED AND DISMISSED WITH PREJUDICE.

         Background and Procedural History

         After his pre-trial motion to suppress was denied, in March of 2012, Brown was tried by a jury in the Harford County Circuit Court before Judge Stephen M. Waldron. ECF No. 5-1, Filed Separately Exhibits 4-8. The following facts were adduced at trial by the Court of Special Appeals of Maryland:

In the early morning hours of August 18, 2007, the appellant was driven by his friend and roommate, Mark Christian, to the Emergency Room of Franklin Square Hospital in Baltimore County for treatment of a gunshot wound to his left foot. Hospital staff called the police to report the shooting. Health care providers at the hospital removed a bullet from the appellant's foot, and treated his wound.
Officer David Crum, of the Baltimore County Police Department, arrived in response to the call from the hospital staff. He questioned the appellant and Christian separately about the shooting. Initially, the appellant said he had been shot near a diner. He then said he had been shot during an attempted robbery at a gas station. Officer Crum had other officers go to the locations of the gas station and the diner. The police could not find any evidence of a shooting at either location. Officer Crum contacted Detective Mark Janowitz, of the Violent Crimes Unit, who came to the hospital. He had been told that the stories that the appellant and Christian were giving about the shooting were inconsistent. Detective Janowitz interviewed both men at the hospital.
The Baltimore County police impounded Christian's vehicle from the hospital parking lot so it could be searched for evidence related to the shooting. After obtaining a warrant, the police searched Christian's car. Inside it, they found a handgun and ammunition in a woman's purse. The police did not recover any other items of evidentiary value. The police also collected as items of evidence the bullet that was extracted from the appellant's foot and a blood-splattered boot the appellant had been wearing when he arrived at the Emergency Room.
The appellant was discharged from the hospital later in the morning of August 18, 2007, and was transported directly to the Baltimore County Police Department headquarters for additional questioning by Detective Janowitz about the shooting. In a recorded interview, the appellant gave yet a third story, saying he had been shot at a liquor store in Baltimore City. He then changed his story once again, saying that Christian had accidentally shot him while Christian was cleaning his gun at the apartment the men shared on Elmora Avenue in Baltimore City. Although Detective Janowitz did not believe the appellant's various explanations that he was the victim of an attempted robbery somewhere in Baltimore City or Baltimore County, the detective finally accepted that the appellant was shot accidentally by Christian while he was cleaning his gun at their shared apartment.
Baltimore County police notified the Baltimore City Police Department about the reported shooting at the apartment on Elmora Avenue. Baltimore City Police Detectives Kirk Henry and Gregory Jenkins went to the Baltimore County Police headquarters and interviewed the appellant and Christian after Detective Janowitz was finished with his interviews. They also secured a warrant to search the residence where the appellant and Christian lived. The search did not produce evidence related to a shooting or any other criminal activity.
It so happened that also on August 18, 2007, at around 11:30 p.m., the body of Robert "Rob" Hemphill was discovered in the room where he had been living at the Keyser Motel, in Aberdeen. Hemphill's normally "neat" room had been ransacked, and Hemphill had been beaten and shot in the back and in the left thigh. The medical examiner was unable to determine conclusively the time of death but, based on the state of Hemphill's body at around 3:20 a.m. on August 19, 2007, his death was believed to have occurred 18 to 24 hours before that time.
Hemphill had been living at the Keyser Motel because he was in the Federal Witness Protection Program. Before entering the program, he had lived in Baltimore City, and had testified in a federal trial against "a couple of drug dealers and murderers" who were "part of a pretty violent drug organization." After testifying, Hemphill "had legitimate concerns about his safety if he were to live in Baltimore City." Through the Federal Witness Protection Program, Hemphill both lived at the motel in Aberdeen and worked in Harford County. At the time of his death, no specific threats had been reported against him.
Hemphill's body was discovered by his friend, Rodney Scott who also lived at the Keyser Motel. Before August 18, 2007, Hemphill and Scott had worked together at C&S Wholesale grocers, a nearby company. Scott reported that he had last seen Hemphill after they finished work and returned to the motel the previous night, August 17, 2007, around 9:00 p.m. According to Scott, Hemphill did not have a bank account, so he would cash his weekly paycheck at a nearby liquor store. Hemphill had been saving his money to purchase a car, and had saved enough to do so at the time of his death. It was common knowledge among Hemphill's family, friends, and associates that he usually carried a substantial amount of cash on his person and that he kept cash in his motel room.
After the Harford County Police Department's initial investigation, no leads developed, and the case of Hemphill's death became dormant.
Approximately three years after Hemphill's murder, a detective investigating cold cases decided to look into whether there was a connection between Hemphill's death and the appellant's gunshot injury, given that both occurred in the early morning hours of August 18, 2007, and neither was explained. The detective learned that the appellant and Christian had worked with Hemphill at C&S Wholesale and were known to be friends with him.
Forensic testing was performed on the bloody boot the appellant had been wearing when he arrived at the hospital The testing showed that the appellant's blood was on the inside of the boot, but Hemphill's blood was splattered on the top of the boot. Ballistics testing confirmed that one of the two cartridge casings found in Hemphill's motel room had been fired from the handgun that had been recovered from Christian's vehicle. The other cartridge casing found in Hemphill's room was fired from a different handgun. Examination of the two bullets that were recovered by the police-one from Hemphill's motel room, and the other from the appellant's foot-were inconclusive as to which gun or guns the bullets had been fired from.
On May 31, 2011, the appellant was indicted in the Circuit Court for Harford County for crimes stemming from Hemphill's death: (1) armed robbery; (2) attempted armed robbery; (3) conspiracy to commit armed robbery; (4) theft over $500; (5) first-degree murder; (6) conspiracy to commit first-degree murder; (7) illegal possession of a regulated firearm; (8) wearing, carrying, or transporting a handgun; and (9) use of a handgun in the commission of a crime of violence.
The case against the appellant was tried before a jury on March 14, 15, 19, and 20, 2012. The State's evidence included testimony of police officers who investigated the gunshot wound to the appellant's foot and those who investigated Hemphill's murder both initially and when the case was reopened; recorded interviews of the appellant by some of those officers; a ballistics expert with the FBI who testified that a shell casing taken from the scene of Hemphill's murder was fired from the handgun found in Christian's car; and a forensic DNA analyst who testified that Hemphill's blood was found on the appellant's boot.
The appellant testified on his own behalf. He acknowledged that he had worked with Hemphill at C&S Wholesale, but said he had left that job in November 2006. More important, he further acknowledged that, on the night of Hemphill's death, he and Christian had gone to the Keyser Motel and had visited him. The appellant denied that he was armed with a gun at that time or that he had had any intention to rob Hemphill. The appellant testified that, while he, Christian, and Hemphill were in Hemphill's motel room, a man wearing a mask and black clothing kicked in the door and started throwing things around the room. According to the appellant, the intruder hit Hemphill with a gun, and, when Hemphill fought back, the intruder's gun went off, fatally injuring Hemphill and shooting the appellant in the foot. The appellant said that the wound to his foot was so painful that for a few minutes after he was shot he could not see or hear anything. When he was again able to focus, he saw that Hemphill was dead and the intruder was gone. The appellant and Christian left the motel as quickly as they could. The appellant sought medical assistance from a family member who was a nurse. He and Christian then returned to Baltimore City. When the appellant's wound became too painful to bear, Christian drove him to the Franklin Square Hospital Emergency Room.
The appellant further testified that, during the attack in Hemphill's motel room, the intruder threatened him (the appellant) with the gun and said he knew the appellant's identity. The appellant attested that it was out of fear for his life that he did not report the incident to the police and then repeatedly lied to the police about the circumstances surrounding the shooting, even after he was arrested for killing Hemphill.
The jurors deliberated for a day and a half, returning their verdict on March 21, 2012. They found the appellant not guilty of using a handgun in a crime of violence, but guilty of first-degree felony murder, attempted armed robbery, and conspiracy to commit armed robbery. The State nolle prossed the remaining charges.

ECF No. 5-1, Filed Separately Exhibit 13, pp. 1-7.

         On May 17, 2012, Judge Waldron sentenced Brown to life plus a consecutive twenty-year term. Id., Filed Separately Exhibit 9. Brown, through counsel, noted an appeal to the Court of Special Appeals, raising the following claims:

1. The evidence was insufficient to support Brown's convictions.
2. The lower court erred in permitting the State to introduce a statement that Brown made to police, in the absence of prior Miranda warnings, based on the determination that Brown was not in custody when he made that statement.

ECF No. 5-1, Filed Separately Exhibit 10, p. 2.

         In an unreported opinion filed on October 28, 2013, the Court of Special Appeals affirmed Brown's convictions, rejecting his two claims of error. Id., Filed Separately Exhibit 13. Brown filed a self-represented petition for a writ of certiorari, requesting that the Court of Appeals of Maryland further review the two claims rejected by the Court of Special Appeals. Id., Filed Separately Exhibit 14. On February 24, 2014, Brown's request for further review was denied. See Brown v. State, 437 Md. 66 (2014).

         In his original Petition for a writ of habeas corpus, Brown again raises the claims he presented on direct appeal, namely that the evidence was insufficient to sustain his convictions and the trial court erred in denying his motion to suppress his statement to the police. ECF No. 1, pp. 5-6. In his Amended Petition, he alleges that the state appellate court committed error "in sustaining convictions based on a different theory not presented to the jury during trial." ECF No. 4.

         Threshold ...


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