United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
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
and Collateral Review
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. 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.
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.
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).
in this Court
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 -
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.
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.
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.
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.
his arrest, Holmes was read and acknowledged his
Miranda 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.
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.
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.
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.
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 - ...