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Powell v. Bishop

United States District Court, D. Maryland

November 2, 2016




         In response to the Petition for Writ of Habeas Corpus filed in the above-entitled action, Respondents assert that Petitioner Darryl Powell is not entitled to relief because one claim is procedurally defaulted and the remaining claim is based only on state law. ECF No. 6. Although this court granted Powell 30 days to file a reply (see ECF No. 3 at ¶ 3), he has filed nothing further. 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. 2016); 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 stated herein, the Petition shall be denied and a certificate of appealability shall not issue.


         Appellate and Collateral Review

         Powell pled guilty to charges of second-degree murder and openly carrying a dangerous weapon with the intent to injure on April 25, 2007, in the Circuit Court for Baltimore City. ECF No. 1 at pp. 1 - 2. Powell did not file an application for leave to appeal the guilty plea, but on March 31, 2014, filed a petition for post-conviction relief alleging in part that he received ineffective assistance of counsel when he was not advised that an appeal needed to be filed within 30 days of the date he plead guilty. Id. at pp. 3- 4. On November 21, 2014, the post-conviction court granted relief in part and allowed Powell to file a belated appeal.[1] Id. at p. 4. Relief was denied as to the remaining two claims that Powell was denied effective assistance of counsel when counsel entered his appearance at the time of the guilty plea and the plea was not knowingly or voluntarily entered into when the “court failed to conduct a proper waiver of counsel.” Id. Powell did not file an application for leave to appeal the post-conviction court's denial of relief on those two claims. ECF No. 6 at Ex. 1 and 3.

         On December 15, 2014, Powell filed the belated appeal as permitted by the post-conviction court's ruling. ECF No. 6 at Ex. 3. In the application for leave to appeal, Powell asserted through counsel that the trial court erred when it failed to meet the requirements of Maryland Rule 4-215 and allowed Powell effectively to waive his right to the effective assistance of counsel. Id. Powell filed a self-represented supplement to the application asserting that his plea was defective because he was overcharged when he was charged with conspiracy to commit murder and first degree murder; and because he was not informed of the minimum sentence for second degree murder. Id.

         On May 28, 2015, the Maryland Court of Special Appeals summarily denied the application for leave to appeal. ECF No. 6 at Ex. 4. The court's mandate issued on June 30, 2015. Id. Powell's conviction was final on September 28, 2015, the date the time for seeking further appellate review in the Supreme Court expired. The instant Petition for Writ of Habeas Corpus was filed on February 10, 2016, and is timely filed under 28 U.S.C. § 2244(d).

         Claims in this Court

         Powell raises two claims in his petition. First, he claims that he received ineffective assistance of counsel when counsel entered the case at the time of the guilty plea. ECF No. 1 at p. 6. Powell explains that prior to the guilty plea proceeding he was “effectively unrepresented by counsel” because “his case had been transferred from one attorney to another.” Id. Powell further states that prior to entering the guilty plea he was being represented by two court-appointed attorneys and neither of those two attorneys were present at the time of the guilty plea. ECF No. 1-1 at p. 1. Powell argues that the mere presence of counsel at the proceeding was not enough to ensure his Sixth Amendment rights were protected and that the results of the proceeding were fair. Id. at pp. 3 - 4.

         In his second claim, Powell alleges his guilty plea was not made intelligently, knowingly, or voluntarily “because the court failed to conduct a proper waiver of counsel.” ECF No. 1 at p. 6. He further asserts that he “effectively waived his right to effective counsel” and that when a criminal defendant waives his right to counsel the court is required to follow the requirements of Maryland Rule 4-215. Id. at pp. 6 and 13. Powell states that the rule requires an examination of the defendant on the record, but in this case no examination took place and he did not waive his right to counsel. Id. at p. 13. Powell characterizes court appointed counsel Dennis Ley, who was present at the guilty plea proceeding, as “a mere friend of the court” who did not provide constitutionally adequate assistance. ECF No. 1-1 at p. 4.

         Trial Court Proceedings

         Powell was charged, along with co-defendant Edward Holmes, with the December 31, 2005 murder of Dwight Watson. ECF No. 6 at Ex. 2, p. 15. The evidence the State would have produced had the matter gone to trial included the testimony of an eye-witness to the murder, off-duty police officer Hikeen Crampton. Id. Crampton would have testified that at approximately 10:45 p.m., he was walking in the 2300 block of Ashburton Street in Baltimore City when he witnessed two individuals attacking the victim. Id. Crampton phoned in a call for “officer in need of assistance” to the 911 dispatcher and watched as the two individuals, later identified as Holmes and Powell, walked away from where Watson was lying. Id. at p. 16. Crampton would have testified that he continued to watch the two suspects and gave verbal directions to responding officers regarding their whereabouts. Id.

         Watson sustained serious wounds and survived less than an hour after he was taken to Shock Trauma. ECF No. 6, at Ex. 2, p. 16. An autopsy was performed and determined that Watson, who was 51 years old, died as a result of the six stab wounds and two cutting wounds he sustained. Id. at p. 18.

         Police officers responding to the scene stopped Powell and Holmes who were found in the 2200 block of Braddish Avenue. ECF No. 6 at Ex. 2, p. 16. Recovered in the vicinity was a knife with blood on it. Id. Additionally, clothing worn by Powell was seized and submitted to the Baltimore City Police Biology and DNA Laboratory where examinations revealed that the victim's blood was on both the jeans and the coat worn by Powell. Id. at p. 19. DNA analysis confirmed the blood matched that of Watson. Id.

         Following his arrest, Holmes was read and acknowledged his Miranda[2] rights, waived those rights, and provided a statement to the police which was tape-recorded. ECF No. 6 at Ex. 2, p. 17. Holmes told police that he and Powell were riding in Watson's car and that Watson was operating as a hack. Id. He recalled that he asked Watson to stop so he could relieve himself in an alley and Watson complied. Id. Holmes said when he returned to the car he saw Powell stabbing Watson. Id.

         In addition to this evidence, the State was prepared to provide testimony from Keith Branch, Powell's cellmate at Baltimore City Booking, who was interviewed by Baltimore City detectives on January 26, 2006. ECF No. 6 at Ex. 2, p. 18. Branch identified Powell's picture in a photographic array and told police he was the person who killed Dwight Watson. Id. He related that Powell told him that “he was the person that did the . . . last murder for 2005.” Id. Branch further told police that Powell said that he and a friend “caught a hack” on the west side of town when Powell's friend asked him to stop so he could urinate. Id. According to Branch, Powell said after Holmes left the car, he decided he also had to urinate. Id. Powell told Branch that when he returned, Powell and Holmes got into an argument with Watson. Id. Powell related to Branch that Watson said something he didn't like so he hit him in the face. Id. Then a physical fight started and Powell took out a knife. Id. Powell told Branch he was trying to cut Watson's fingers off and before he realized it, Watson was dead. Id.

         Prior to taking Powell's guilty plea, there was a plan to postpone the proceedings because Powell's appointed panel attorney, Joan Frazier, could no longer represent him due to a conflict of interest. ECF No. 6 at Ex. 2, p. 2 and pp. 11 - 12, 14. By the time of the proceeding, Frazier had become employed by the Public Defender's office and Powell's co-defendant was represented by counsel from that office. Id. at p. 2, see also ECF No. 6 at Ex. 3, p. 2. The second panel attorney, Steven Sheinen, could not make the hearing date and the State's Attorney was going to ask for a postponement. ECF No. 6 at Ex. 2, p. 2. The three month postponement was not sought when Powell made it known to the court he was unhappy with the plan and “said he wants to cop now.” Id. at p. 3. After a recess in the proceedings, another attorney, Dennis Ley, was appointed by the court to represent Powell to accommodate his request to move forward with the proceedings. Id. at p. 14.

         The record reflects that a plea agreement was made with the State whereby if Powell “were to plead guilty to the amended first count, the charge would be second degree murder as well as to Count II which charges wear, carry a weapon openly with the intent to injure.” ECF No. 6 at Ex. 2, p. 4. Powell would be “subject to a 30 year sentence on the second degree murder count as well as a three year concurrent sentence on the weapons count.” Id. In exchange for his guilty plea, the State dismissed the count of the indictment that charged Powell with conspiracy to commit first degree murder. Id. Powell indicated that this explanation of the plea agreement was also his understanding of what would occur if he pled guilty. Id.

         Following the explanation of the agreement, Powell was placed under oath and informed the court of his age (19) and the highest grade he completed (eleventh grade). ECF No. 6 at Ex. 2, p. 5. Powell's counsel explained the nature and elements of the crime to which he was pleading guilty; the State's burden of proof if the matter had gone to trial; Powell's right to testify and to compel any witnesses he may have to testify at trial on his behalf and the grounds for appellate review that would be waived. Id. at pp. 5 - ...

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