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Mbewe v. Bishop

United States District Court, D. Maryland

December 16, 2016

FRANCIS C. MBEWE, #360922 Petitioner,


          James K. Bredar United States District Judge.

         Petitioner Francis C. Mbewe (“Mbewe”) seeks habeas corpus relief pursuant to 28 U.S.C. § 2254, attacking the constitutionality of his 2010 convictions in the Circuit Court for Montgomery County. (ECF Nos. 1 & 5). Respondents were directed to respond to the Petition and have done so. (ECF No. 11). Mbewe filed a reply, in the form of a declaration. (ECF No. 20). This matter has been fully briefed. 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 hearing under 28 U.S.C. § 2254(e)(2)). For reasons that follow, Mbewe's Petition for writ of habeas corpus IS DENIED AND DISMISSED WITH PREJUDICE.

         Background and Procedural History

         On July 22, 2009, Mbewe was arrested and charged with armed robbery, conspiracy to commit armed robbery, and second degree assault. (ECF No. 1 at 4.) After a jury trial, Mbewe and a co-defendant, Delonte Johnson, were convicted on February 22, 2010, on all counts. (Id. at 4-5; ECF No. 5 at 1.) On April 20, 2010, Mbewe was sentenced to serve 15 years in prison.[1](ECF No. 1 at 5; ECF No. 5 at 1-2.) Mbewe filed a Notice of Appeal on April 23, 2010, and, in an unreported opinion dated October 12, 2011, the Court of Special Appeals of Maryland affirmed the judgment as to both Mbewe and Johnson. (ECF No. 1 at 5; ECF No. 5 at 2; Resp. Ex. 11.)[2] Two weeks later, on October 26, 2011, Mbewe filed a pro se petition for writ of certiorari in the Court of Appeals of Maryland (ECF No. 1 at 5; Resp. Ex. 12), followed on November 18, 2011, by a counseled petition for writ of certiorari (ECF No. 1 at 5; Resp. Ex. 13). On January 23, 2012, the Court of Appeals denied further review. (ECF No. 1 at 5; ECF No. 5 at 3.) Mbewe did not file a petition for writ of certiorari to the United States Supreme Court. (ECF No. 5 at 3.)

         Also on April 23, 2010, Mbewe filed a pro se petition for post-conviction review in the Circuit Court for Montgomery County, followed by several pro se supplements as well as a counseled amended petition and a supplement thereto. (ECF No. 1 at 5; ECF No. 5 at 3; Mbewe Ex. 1.)[3] A hearing was held on May 14, 2014, and the circuit court denied post-conviction relief on the record at the end of the hearing. (ECF No. 1 at 5; Resp. Ex. 15.) The court's Statement of Reasons and Order of Court, with attached transcript, was issued on June 11, 2014. (Resp. Ex. 15 at 1.) Mbewe did not file an application for leave to appeal the denial to the Court of Special Appeals. (ECF No. 1 at 4.)

         Petitioner filed his federal Petition on May 19, 2014, [4] presenting seventeen claims of error for the Court's review. (ECF No. 1.) At the Court's direction (ECF No. 3), Petitioner subsequently filed a supplement to the Petition (ECF No. 5). On August 26, 2014, Respondents filed their Answer. (ECF No. 11.) Petitioner's Reply was filed on January 4, 2016. (ECF No. 20).

         Standard of Review

         Section 2254 states 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.” 28 U.S.C. § 2254(a).

         I. Threshold Considerations

         A. Exhaustion

         The exhaustion doctrine, codified at 28 U.S.C. § 2254(b)(1), [5] “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.”).

         B. Procedural Default

         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,

In this regard, we note that nothing in our decision today requires the exhaustion of any specific state 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; see also Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)) (“A procedural default also occurs when a habeas petitioner fails to exhaust available State remedies and ‘the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'”).[6]

         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 478, 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 at 620. In order to demonstrate prejudice, a habeas petitioner must show “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); see also Carrier, 477 U.S. at 494 (quoting Frady). 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, 314-15 (1995).

         C. Strickland

         When a petitioner alleges a claim of ineffective assistance of counsel, he must show both that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Representation is deficient if it falls below an objective standard of reasonableness, considering all the circumstances. Id. at 688.

         To satisfy the first part of this standard, it must be demonstrated that counsel's performance was not “within the range of competence normally demanded of attorneys in criminal cases.” Id. at 687. The standard for assessing such competence is “highly deferential” and has a “strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance.” Id. at 669. A federal court's consideration of ineffective assistance of counsel claims arising from state criminal proceedings is limited on habeas review due to the deference accorded trial attorneys and state appellate courts reviewing their performance. See 28 U.S.C. § 2254(d)(1). A petitioner must overcome the “‘strong presumption' that counsel's strategy and tactics fall ‘within the wide range of reasonable professional assistance.'” Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). “There is a strong presumption that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than sheer neglect.” Harrington v. Richter, 562 U.S. 86, 109 (2011) (citations and internal quotation marks omitted); see also Sharpe v. Bell, 593 F.3d 372, 383 (4th Cir. 2010) (“Counsel is not required to engage in the filing of futile motions.”). “The standards created by Strickland and § 2254(d) are both ‘highly deferential, ' and when the two apply in tandem, review is ‘doubly' so.” Harrington, 562 U.S. at 105 (citations omitted). “When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.

         The second prong requires the court to consider whether counsel's errors were so serious as to deprive the defendant of a fair trial whose result is reliable and whether there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 690-94. “The benchmark of an ineffective assistance claim must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Id. at 686. It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, counsel's errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. A determination need not be made concerning the attorney's performance if it is clear that no prejudice would have resulted had the attorney been deficient. See Id. at 697.

         The principles governing ineffectiveness claims apply in federal collateral proceedings as they do on direct appeal or in a motion for new trial. Id. at 697. Indeed, the presumption that a criminal judgment is final is at its strongest in collateral attacks on that judgment. Id.

         II. Analysis Framework

         A federal court may not grant a writ of habeas corpus unless the state's adjudication on the merits (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.” 28 U.S.C. § 2254(d).

         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, ” 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, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In other words, “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).

         Under section 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, ” a federal court may not conclude that the state court decision was based on an unreasonable determination of the facts. Id.

         Further, “a determination of a factual issue made by a State court shall be presumed to be correct[, ]” and the petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). “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, 593 F.3d at 378. 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.


         I. Exhaustion and Procedural Default

         Respondents argue that “Mbewe's current petition contains numerous claims that have not been presented to all appropriate state courts.” (ECF No. 11 at 17). They note that, while there are procedural barriers that may prevent Mbewe from bringing those claims in state court at this point (id. at 13-15), Mbewe has one potential avenue of relief available to him; he could file a motion to reopen his post-conviction proceedings[7] (id. at 15). Therefore, they contend, the Petition should be dismissed unless Mbewe withdraws his unexhausted claims. (Id.).

         Mbewe raised his insufficient evidence claim on direct appeal to the Court of Special Appeals and included it in his pro se petition for writ of certiorari to the Court of Appeals. (Resp. Ex. 11 at 2; Resp. Ex. 12 at 2-4). Therefore, this claim has been exhausted.

         Mbewe's claim that the trial court erred in its response to a jury question regarding whether there could be a hung jury as to Mbewe's guilt was raised on direct appeal and in both his pro se and counseled petitions for writ of certiorari. (Resp. Ex. 9 at 13; Resp. Ex. 12 at 4-9; Resp Ex. 13 at 2.) He advances related claims in his Petition in this Court, albeit not in the same form as the claim before the Maryland appellate courts.[8] The Court does not view these claims as exhausted.

         With respect to his other claims, Mbewe states that he “presented and exhaus[t]ed his claims on direct appeal to the Maryland Court of Special Appeals and Maryland Court of Appeals, in his brief, even though the court failed to rule on the merits on direct appeal ....” (ECF No. 1 at 3). He lists fourteen claims (id. at 4), which apparently were contained in a pro se brief filed in the Court of Special Appeals (ECF No. 17-1). That brief, filed when Mbewe was represented by counsel, was returned to him by the Clerk of the Court of Special Appeals.[9] (Id.). Thus, the claims were never properly before that court.

         Mbewe represents that he presented revised claims on the same issues in his post-conviction proceeding, which were denied at the May 14, 2014, hearing. (ECF No. 1 at 4.) However, he did not file an application for leave to appeal the denial of his post-conviction petition, stating that he “has already presented these claims before the Maryland Court of Special Appeal[s] and it will be futile to present the claims to the Maryland Court of Special Appeals the second time on the Application for Leave to Appeal.” (Id.). Again, however, the claims had not been properly presented to the Court of Special Appeals previously, and by declining to file an application for leave to appeal, Mbewe has not “give[n] the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process, ” O'Sullivan, 526 U.S. at 845, as to his remaining claims. The Court concludes that the majority of Mbewe's claims have not been raised in all appropriate state courts and are thus unexhausted and, arguably, procedurally defaulted.

         Mbewe may overcome the procedural default by demonstrating both cause for the procedural default and prejudice that will result from the Court's failure to consider the claims on the merits, see Carrier, 477 U.S at 485-96; Breard, 134 F.3d at 620, or, alternatively, that failure to consider the claims will result in a fundamental miscarriage of justice, that is, the conviction of one who is actually innocent, see Schlup, 513 U.S. at 314-15; Wolfe v. Johnson, 565 F.3d 140, 160 (4th Cir. 2009) (“A proper showing of ‘actual innocence' is sufficient to satisfy the ‘miscarriage of justice' requirement.” (citing House v. Bell, 547 U.S. 518, 536-37 (2006))). In addition to arguing that he has exhausted his state court remedies, Mbewe argues the latter.

         II. Actual Innocence

         Mbewe seeks to use actual innocence as a gateway to overcome the exhaustion requirement and procedural default of any claims deemed unexhausted or procedurally defaulted.[10] (ECF No. 1 at 2); see also Schlup, 513 U.S. at 315. In his Petition, he contends that “the trial court prevented petitioner from using evidence which would have helped petitioner establish actual innocen[c]e and produced a different verdict” (ECF No. 1 at 2), by granting the State's motion in limine to exclude a videotaped statement he made which he describes as “exculpatory” (id. at 3). Subsequently, in his declaration/reply, he states that “[i]n March of 2012 he discovered new reliable exculpatory scientific evidence revealing that the State['s] main witness Corporal Kukucka gave a false K9 expert testimony in human scent identification by K9 Saber.” (ECF No. 20 at 1.) Both of these arguments are presented as separate issues in the Petition and will be discussed infra. They are addressed here for the limited purpose of determining whether Mbewe has demonstrated that he is actually innocent of the crimes for which he was convicted in order to overcome the procedural default of the majority of his claims.

         “[A] § 2254 petitioner asserting actual innocence as a procedural gateway is obliged to demonstrate that ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.'” Wolfe, 565 F.3d at 164 (quoting Schlup, 513 U.S. at 327). A credible claim of actual innocence requires a petitioner “to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup, 513 U.S. at 324. In addition, the petitioner must show “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Id. at 327. Mbewe cannot make either showing.

         With respect to the videotaped statement, although it is true that the allegedly “exculpatory” statements were not presented to the jury as evidence during Mbewe's trial, Mbewe has not demonstrated how they were exculpatory. He claims that he was never asked if he knew his co-defendant at the time of his arrest (ECF No. 1 at 3), which apparently would be reflected in the videotaped statement, although he testified at trial that he did tell the police that he did not know Jordan (Resp. Ex. 4 at 197).[11] Mbewe also claims that his videotaped statement would have refuted allegedly false statements made by Detective Georgia Frazier in the application for statement of probable cause and undermined the prosecution's theory of the case (ECF No. 1 at 3, 37), without further explication. Moreover, the statement clearly cannot be considered “new” evidence, as it existed at the time of his trial.

         As to Mbewe's claim of “newly discovered evidence, ” Mbewe states:

In the year 2013 a dog-tracking expert was retained on behalf of petitioner by the Office of the Public Defender, Collateral Review Division. The K9 expert reviewed the testimony of Corporal Kukucka at trial, Corporal Kukucka['s] training records and qualifications, and Sabre['s] training records which were determined to be helpful to petitioner's allegation of error.

(ECF No. 20 at 3).

         The calendar belies Mbewe's contention that the evidence he cites is “newly discovered.” Mbewe filed his initial pro se post-conviction petition in the Circuit Court for Montgomery County on April 23, 2010 (ECF No. 5 at 3; Resp. Ex. 1), followed by pro se amendments, supplements, and/or memoranda on August 19, 2010, November 10, 2010, March 13, 2012, January 14, 2013, January 31, 2013, and September 16, 2013 (Resp. Ex. 1). Post-conviction counsel filed an amended petition, incorporating Mbewe's pro se claims, on September 18, 2013, and a supplement to the amended petition on September 23, 2013. (Resp. Ex. 1; Mbewe Ex. 1; Resp. Ex. 15.) On May 14, 2014, a hearing was held on the counseled amended petition and supplement thereto. There is no reason given by Mbewe why this evidence could not have been presented to the post-conviction court prior to or at the hearing-if, in fact, it was not presented. Moreover, Mbewe has not presented the Court with any expert report (or explanation as to how it was “helpful”), or anything other than his own unsubstantiated declaration, to support his allegations regarding Corporal Kukucka's “perjured testimony” and “unreliable” identification of Mbewe. (Mbewe Ex. 1 at 14; ECF No. 20.)

         Mbewe has provided this Court with no “new evidence” on the basis of which “no reasonable juror would have found [him] guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327. Further, as will be discussed infra, there was sufficient evidence presented at trial to convict him. In short, Mbewe has not made the showing required to demonstrate actual innocence and “pass through the gateway” in order to have his unexhausted and/or procedurally defaulted claims heard. Id. at 316.

         III. Insufficient Evidence

         As stated above, Mbewe's claim that there was insufficient evidence to support his conviction (Ground Seventeen) (ECF No. 1 at 53-54) has been exhausted, as it was presented to the Court of Special Appeals on direct appeal (Mbewe Ex. 2 at 9-13), and, after that court affirmed his conviction, in his pro se petition for a writ of certiorari to the Court of Appeals (Resp. Ex. 12 at 2-4). Accordingly, the Court turns to the merits of the claim.

         The Court of Special Appeals, viewing the evidence in the light most favorable to the State, the prevailing party, summarized the evidence presented at trial as follows:

Around 5:40 a.m. on July 22, 2009, the 7-Eleven convenience store at the corner of Briggs Chaney Road and Old Columbia Pike was robbed. A store clerk and two patrons inside the store and one patron outside the store at the time of the robbery testified for the State. The store clerk testified that he was standing next to the cash register when three men entered the store with t-shirts covering their heads, hiding their faces. The clerk testified that the first man stood in front of the counter and pointed a gun at him; the second man jumped over the counter and ran up to him; and the third man stood near the front door. The robber who had jumped over the counter hit the clerk in the head a few times and demanded that he open the register. The clerk did as he was told. That robber took what was later determined to be $45.43 from the register. The robbers then fled.
A store patron testified that he was at the back of the store when he heard a lot of commotion and observed three men robbing the store. The men had t-shirts over their faces; two of the men wore black t-shirts; one of the men wore what the patron thought was a white t-shirt. A second patron testified that he was near the front door when three black men with shirts covering their heads rushed into the store. He tried to exit the store but the third robber told him to “get down, get down.” The patron apparently did not move fast enough so that robber stomped on him two or three times, forcing him to the ground. Around this time, a third patron had pulled into the parking lot of the store. As she was getting out of her car, she saw three men run out of the store with t-shirts over their heads. Two of the men had black t-shirts over their heads; one had a white t-shirt. She saw the three men run to the left of the store and down an embankment that led to some woods.
The robbery took less than 30 seconds. Neither the clerk nor the three patrons were able to identify the robbers. The store surveillance system recorded the robbery. The tape was played for the jury and admitted into evidence as well as photographs from the tape. The tape and photographs showed a black man wearing a white sleeveless shirt with a light gray shirt covering his head running into the store with a gun. It showed a second black man without a shirt on but with a black t-shirt covering his head jump onto the counter to get to the register. Because of the angle of the camera, the third robber was not shown on the film.
After the robbers fled, the store clerk immediately called the police, who responded within five minutes. Based on the officers' conversations with the clerk and patrons, the police broadcast a description of the robbers and secured the perimeter of the building.
Corporal Paul Kukucka, a fifteen-year veteran with the Montgomery County K-9 unit, and Saber, his German Shepherd, arrived shortly thereafter. Corporal Kukucka testified extensively as to his and Saber's training and experiences in tracking. Corporal Kukucka, who was accepted as an expert in the field of K-9 tracking, explained that he and Saber initially went through 14 weeks of training, and that every three weeks they reinforce their ...

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